OPINION  OF  THE  SUPREME  COURT  OF  TENNESSEE 
IN  THE  VANDERBILT  UNIVERSITY  CASE. 


Rendered  March  21,  1914. 


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UNIVERSITY  OF  ILLINOIS  LIBRARY 


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NOV  2  4  1916 


OPINION  OF  THE  SUPREME  COURT  OF  TENNESSEE 
IN  THE  VANDERBILT  UNIVERSITY  CASE. 


Delivered  by  Special  Judge  W.  R.  Turner  on  March  21,  1914,  all  of  the 

Justices  Concurring. 


CThe  headings  are  not  a  part  of  the  Opinion  of  the  Court.) 


STATE  OF  TENNESSEE  EX  EEL.  BISHOPS  OF 
THE  METHODIST  EPISCOPAL  OHUEOH,  SOUTH 


FROM  THE 
CHANCERY  COURT 
OF  DAVIDSON  COUNTY 


BOAKD  OF  TEUST  OF  VANDEEBILT 
UNIYEESITY  ET  AL. 


PURPOSE  OF  THE  SUIT 


The  bill  in  this  case  was  filed  by  the  State  on  the  relation  of  the 
College  of  Bishops  of  the  Methodist  Episcopal  Church,  South,  and 
three  gentlemen  who  had  been  selected  by  the  General  Conference  of 
the  church  to  fill  vacancies  in  the  Board  of  Trust  of  Vanderbilt  Uni¬ 
versity,  against  the  University  as  a  corporation,  and  its  Board  of  Trust, 
and  three  other  gentlemen  who  had  been  elected  by  the  Board  of  Trust 
to  fill  the  aforesaid  vacancies  in  that  board,  and  seeks  to  enjoin  the 
board  from  admitting  its  own  appointees,  and  to  compel  it  to  seat  those 
elected  by  the  General  Conference. 

Two  answers  are  filed,  one  by  the  majority  of  the  trustees,  their 
appointees,  and  the  University,  contesting  the  bill,  and  the  other  by  a 
minority  of  the  trustees,  admitting  the  rights  claimed  by  the  complain¬ 
ants  and  joining  in  the  prayer  of  the  bill. 


— 2— 

On  the  hearing  in  the  court  below,  the  Chancellor  granted  the 
relief  prayed  for  by  the  bill,  and  the  University  and  majority  trustees 
and  their  appointees  have  appealed  and  assigned  errors  in  this  court. 

QUESTIONS  FOR  DETERMINATION 

Two  questions  are  involved,  to  wit:  Whether  the  General  Con¬ 
ference  has  the  right  to  elect  the  members  of  the  Board  of  Trust, 
and  whether  the  College  of  Bishops  has  visitorial  power  over  the  Uni¬ 
versity,  and  the  right  to  veto  the  action  of  its  Board  of  Trust. 

STATEMENT  OF  FACTS 

The  pleadings  and  proofs  are  very  voluminous.  On  the  hearing 
below,  exceptions  were  taken  to  much  of  the  evidence  as  hearsay,  ir¬ 
relevant,  and  immaterial.  The  Chancellor  overruled  the  exceptions, 
and  admitted  all  the  evidence.  The  objection  is  not  preserved,  or 
made  in  this  court,  and  hence  the  whole  proof  is  before  us  for  what 
it  is  worth.  A  large  part  of  it  is  immaterial  to  the  real  issues  in  the 
cause. 

The  essential  facts,  appearing  in  the  pleadings  and  proof,  are  as 
follows  : 

Memphis  Convention 

In  the  fall  of  1871,  eight  or  nine  of  the  annual  conferences  of 
the  Methodist  Episcopal  Church,  South,  appointed  committees  “to 
confer”  with  each  other  ‘'in  reference  to  the  establishment  and 
endowment  of  a  Methodist  university  of  high  grade  and  large  endow¬ 
ment,”  but,  as  stated  in  one  of  the  resolutions  appointing  such  com¬ 
mittee,  “it  being  understood  that  said  committee  shall  not  have  au¬ 
thority  to  pledge  this  conference  to  any  action.”  Some  of  these  an¬ 
nual  conferences  were  incorporated  and  some  not,  but  all  were  com¬ 
posed  of  the  ministers  and  lay  delegates  from  the  churches  wdthin 
certain  territory  assigned  to  each,  and  each  had  jurisdiction  over  the 
churches  within  the  district  so  assigned. 

Memphis  Resolutions 

In  January,  1872,  the  several  committees,  appointed  by  these  an¬ 
nual  conferences,  met  at  Memphis,  were  presided  over  by  some  of  the 
bishops,  and,  after  conferring  and  discussing  the  subject  for  three 
days,  adopted  certain  resolutions  prepared  by  Bishop  McTyeire,  as 
follows,  to-wit: 


—3 


'‘Resolved  by  the  convention:  i.  That  measures  be  adopted  look¬ 
ing  to  the  establishment  as  speedily  as  practicable  of  an  institution 
of  learning  of  the  highest  order,  and  upon  the  surest  basis,  where  the 
youth  of  the  church  and  country  may  prosecute  theological,  literary, 
scientific,  and  professional  studies  to  an  extent  as  great,  and  in  a  man¬ 
ner  as  thorough,  as  their  wants  demand.  , 

“2.  That  the  institution  shall  be  called  the  Central  University  of  the 
Methodist  Episcopal  Church,  South. 

^‘3. 'That  it  shall  consist,  at  present,  of  five  schools  or  departments, 
viz. :  A  theological  school,  for  the  training  of  our  young  preachers, 
who,  on  application  for  admission,  shall  present  a  recommendation 
from  a  quarterly  or  annual  conference,  and  shall  have  obtained  a 
standard  of  education  equal  to  that  required  for  admission  on  trial 
into  an  annual  conference ;  and  instruction  to  them  shall  be  free,  both 
in  the  theological  and  the  literary  and  scientific  departments.  Second¬ 
ly,  a  literary  and  scientific  school.  Thirdly,  a  normal  school.  Fourth¬ 
ly,  a  law  school.  Fifthly,  a  medical  school. 

“4.  That  the  sum  of  one  million  dollars  is  necessary  in  order  to 
realize  fully  the  object  desired,  and  not  less  than  five  hundred  thou¬ 
sand  dollars  must  be  secured  as  a  condition  precedent  to  the  opening 
of  any  department  of  the  University. 

^'5.  That  the  location  of  the  University  shall  be  left  to  the  decision 
of  the  College  of  Bishops  of  the  Methodist  Episcopal  Church,  South. 

“6.  That  the  carrying  out  of  this  whole  scheme  is  hereby  com¬ 
mitted  to  the  following  persons,  viz. :  William  C.  Johnson,  Robert 
J.  Morgan,  Smith  W.  Moore,  Milton  Brown,  Alexander  L.  P.  Green, 
Jordan  Stokes,  David  C.  Kelley,  Edward  H.  East,  Robert  A.  Young, 
Landon  C.  Garland,  Philip  Tuggle,  John  M.  Steele,  Jas.  H.  McFerrin, 
Christopher  D.  Oliver,  William  Dickson,  Edward  Wadsworth,  Wil¬ 
liam  Byrd,  William  L.  C.  Hunnicutt,  Thos.  Christian,  James  L.  Bor¬ 
den,  William  H.  Foster,  Andrew  Hunter,  James  L.  DeYampert,  and 
David  T.  Reynolds,  who  shall  take  immediate  steps  for  securing  a 
suitable  charter  of  incorporation,  and  shall  be  a  Board  of  Trust,  with 
power  to  solicit  and  invest  funds,  appoint  an  agent  or  agents,  and  to 
do  whatever  else  is  necessary  for  the  execution  of  this  scheme. 

“y.  That  seven  of  the  Board  of  Trustees,  at  any  meeting  regularly 
called,  shall  constitute  a  quorum. 

“8.  That  provision  be  made  in  the  charter  for  giving  a  fair  repre¬ 
sentation  in  the  management  of  the  University  to  any  annual  con¬ 
ference  hereafter  cooperating  with  us. 


-  4— 


“9-  That  the  Bishops  of  the  Methodist  Episcopal  Church,  South, 
be,  and  are  hereby,  requested  to  act  as  a  Board  of  Supervision  of  the 
University,  or  any  of  its  departments,  and,  jointly  with  the  Board  of 
Trust,  to  elect  officers  and  professors,  and  prescribe  the  course  of 
study  and  the  plan  of  government.” 

Organization  of  Board  of  Trust,  January,  1872. 

On  the  day  after  the  Memphis  convention  adjourned,  this  Board 
of  Trust,  so  designated  and  appointed,  met  and  organized  by  electing 
a  president,  secretary,  treasurer,  and  executive  committee.  The  lat¬ 
ter  were  “requested  to  prepare  a  code  of  by-laws,  defining  the  duties 
of  officers  and  standing  committees,  and  such  other  by-laws  as  may 
be  necessary  for  the  government  of  the  operations  of  the  Board  of 
Trust.”  They  adjourned  to  May  8,  1872,  at  which  time  they  met  at 
Nashville,  where  the  College  of  Bishops  was  then  in  session.  They  ad¬ 
dressed  to  the  Bishops  the  following  communication,  to-wit: 

Action  of  Board  and  Bishops,  May,  1872 

“Whereas,  The  convention  left  the  location  of  the  University  to 
the  decision  of  the  College  of  Bishops  of  the  M.  E.  Church,  South, 
and  also  requested  the  Bishops  to  act  as  a  Board  of  Supervisors  of 
the  University,  or  any  of  its  departments,  and,  jointly  with  the  Board 
of  Trust,  to  elect  officers  and  professors,  and  prescribe  the  course  of 
study  and  the  plan  of  government. 

'‘Resolved,  (i)  That  the  secretary  be,  and  is  hereby,  directed  to  ad¬ 
dress  the  Bishops  with  a  view  of  obtaining  their  acceptance  of  the 
foregoing  official  relation  to  the  University; 

“(2)  That  the  secretary  invite  the  Bishops  to  attend  the  present 
meeting  of  the  Board  of  Trust.” 

On  the  next  day  the  Bishops  made  the  following  reply  (having 
first  voted  down  a  motion  to  decline  the  request  outright)  to-wit: 

"Resolved,  (i)  That  the  College  of  Bishops  accede  to  the  request 
made  by  the  Board  of  Curators  of  the  contemplated  University  to 
locate  the  institution,  whenever  the  sum  of  $500,000  shall  be  pledged 
for  the  enterprise. 

“(2)  That,  by  this  act,  we  are  not  to  be  understood  as  implying 
that  the  said  institution  is  to  be  considered  connectional  to  the  damage 
of  existing  colleges  and  universities.  We  can  take  no  official  relation 
to  the  Central  University  that  will  discriminate  between  it  and  any 
and  every  other  institution  of  the  church.  Nevertheless,  we  feel  free 


5— 


to  give  our  decided  approval  to  the  combination  of  the  several  An¬ 
nual  Conferences  represented  in  the  convention  in  Memphis,  or  so 
many  of  them  as  may  agree  together,  acting  through  their  respective 
bodies,  in  getting  up  an  institution  of  the  highest  grade. 

“(3)  That,  as  the  question  of  theological  schools  is  in  a  contro¬ 
versy  among  our  people,  we  propose  no  action  that  may  be  construed 
into  an  expression  of  our  collective  opinion  on  the  subject,  but  it  is 
made  a  condition  of  the  first  resolution  that  the  theological  depart¬ 
ment,  to  be  comprised — with  the  literary  and  professional  departments 
of  the  proposed  Central  University,  be  such  as  is  consistent  with  the 
action  of  the  General  Conference,  held  in  Memphis  in  1870,  in  the 
words  following: 

“  'Resolved,  That  we  endorse  the  action  of  the  last  General  Con¬ 
ference  in  reference  to  Biblical  chairs  in  connection  with  our  existing 
colleges,  as  the  best  available  means  for  training  young  preachers.’  ” 

To  this  the  Board  responded: 

"Resolved,  That  the  terms  and  conditions  upon  which  the  Bishops 
of  the  church  are  willing  in  due  time  and  proper  form  to  accede  to 
the  request  made  of  them  by  the  late  educational  convention  held  in 
Memphis  to  locate  this  proposed  University  are,  in  the  judgment  of 
the  Board,  sufficient  to  encourage  it  in  the  prosecution  of  this  scheme 
of  education,  contemplated  by  said  convention,  and  as  such  they  are 
hereby  accepted  and  will  be  observed  in  good  faith  by  this  Board.’’ 

Original  Charter  Proceedings,  June-August,  1872  - 

On  June  29,  1872,  the  individuals  named  by  the  Memphis  conven¬ 
tion  as  the  Board  of  Trust  filed  their  petition  in  the  Chancery  Court 
at  Nashville,  praying  the  court  “to  incorporate  them  under  the  name 
and  style  of  the  Central  University  of  the  Methodist  Episcopal  Church, 
South,  for  the  purpose  of  soliciting  subscriptions,  donations,  and  for 
the  erection  and  maintenance  of  an  institution  of  learning  of  the  highest 
order,  containing  all  the  schools  belonging  to  a  university  of  that 
character,  together  with  the  rights,  powers,  and  privileges  which  by 
law  may  belong  to  literary  institutions  chartered  by  the  laws  of  the 
State.  They  pray,  to  this  end,  that  the  required  publication  may  be 
made  and  all  other  necessary  and  proper  steps  be  taken.” 

Publication  was  duly  made,  in  accordance  with  the  petition,  and  as 
prescribed  by  law. 

On  August  6,  1872,  decree  was  entered  on  this  petition,  constitut¬ 
ing  the  charter  of  the  University,  as  follows,  to-wit: 


-6— 


^‘The  Central  University  of  the  Methodist  Episcopal  Church,  South. 

Ex  parte. 

'‘This  matter  came  on  this  day  to  be  heard  before  the  Hon.  Na¬ 
thaniel  Baxter,  Judge,  etc.,  of  the  Circuit  Court  of  Davidson  County, 
sitting  by  interchange  with  the  Hon.  Edward  H.  East,  the  Chancellor 
presiding,  but  who  was  incompetent  to  preside  and  hear  this  cause  for 
the  reason  that  he  was  interested  herein;  and  the  same  was  heard 
upon  the  petition  of  W..  C.  Johnson,  Robert  J.  Morgan,  Smith  W. 
Moore  and  Milton  Brown,  citizens  and  residents  of  the  State  of 
Tennessee,  and  representatives  of  the  Memphis  Conference  of  the 
Methodist  Episcopal  Church,  South;  and  Alexander  L.  P.  Green, 
Jordan  Stokes,  David  C.  Kelley,  Edward  H|.  East,  David  T.  Reynolds 
and  Robert  A.  Young,  citizens  and  residents  of  Tennessee,  and  repre¬ 
sentatives  of  the  Tennessee  Conference;  and  Landon  C.  Garland,  a 
citizen  and  resident  of  Mississippi,  and  Philip  Tuggle,  a  citizen  and 
resident  of  Tennessee,  the  two  latter  representing  the  North  Missis¬ 
sippi  Conference;  and  James  H.  McFerrin  and  John  M.  Steele,  citi¬ 
zens  of  the  State  of  Arkansas,  and  representatives  of  the  White  River 
Conference;  and  Christopher  D.  Oliver  and  William  Dickson,  citizen^ 
of  the  State  of  Alabama,  and  representatives  of  the  North  Alabama 
Conference;  and  Edward  Wadsworth  and  W.  M.  Byrd,  citizens  of 
the  State  of  Alabama,  and  representatives  of  the  Alabama  Conference ; 
and  W.  L.  C.  Hunnicutt  and  Thomas  Christian,  citizens  of  the  State 
of  Mississippi,  and  representatives  of  the  Mississippi  Conference;  and 
James  L.  Borden  and  William  H,.  Foster,  citizens  of  the  State  of 
Louisiana,  and  representatives  of  the  Louisiana  Conference;  and  An¬ 
drew  Hunter  and  J.  L.  DeYampert,  citizens  of  the  State  of  Arkansas, 
and  representatives  of  the  Little  Rock  Conference ;  and  it  appearing 
to  the  court  that  said  persons,  in  their  said  petition,  prayed  to  be  in¬ 
corporated  under  the  name  and  style  of  the  Central  University  of  the 
Methodist  Episcopal  Church,  South,  the  object  and  plan  of  said  Uni¬ 
versity  having  been  fully  set  forth  in  resolutions  passed  by  the  dele¬ 
gates  of  said  conferences,  at  a  convention  of  the  same,  held  in  the 
City  of  Memphis  on  the  24th,  25th,  26th  and  27th  of  January,  1872, 
and  which  resolutions  are  in  words  and  figures  as  follows 

(Here  follow  the  Memphis  resolutions.) 

“And  it  appearing  to  the  court  that,  upon  the  filing  of  said  petition, 
the  Clerk  and  Master  of  this  court  caused,  by  an  order  at  rules,  the 
same  to  be  advertised,  in  pursuance  of  the  statutes  in  such  cases  made 


-7- 


and  prescribed;  and  it  further  appearing  to  the  court  that  no  one 
has  appeared  and  made  known  any  objection  to  the  granting  of  the' 
prayer  of  the  petition ;  and  the  court,  upon  investigation  of  the  designs 
and  objects  of  said  corporation,  finds  nothing  therein  contained  to  be 
against  public  policy  or  good  morals,  or  in  conflict  with  the  Constitu¬ 
tion  and  laws  of  the  State  or  of  the  United  States,  is  pleased  to  granf 
the  prayer  of  the  same,  and  doth  hereby  order  and  adjudge  and  decree 
that  the  petitioners  be  declared  a  body  politic  and  corporate  under  the 
name  and  style  of  the  Central  University  of  the  Methodist  Episcopal 
Church,  South,  and  in  that  name  may  sue  and  be  sued,  plead  and  be 
impleaded,  in  the  courts  of  this  State,  or  of  the  other  States  of  the 
Union,  or  of  the  United  States  of  America ;  may  have  a  common  seal, 
which  may  be  altered  at  pleasure ;  shall  have  perpetual  succession  ; 
may  solicit  and  receive  subscriptions,  donations,  legacies  and  devises ; 
may  hold  real  estate  and  personal  property  in  such  amounts  as  the 
business  of  the  corporation  requires,  and  may  receive  the  same  by 
contract,  gift,  will  or  devise,  and  shall  hold  the  same  for  the  pur¬ 
pose  of  said  incorporation,  with  all  the  lawful  conditions  imposed  by 
the  donor;  may  appoint  such  subordinate  officers  and  agents  as  the 
business  of  the  corporation  requires,  prescribe  their  duties  and  fix  their 
compensation ;  to  make  by-laws  not  inconsistent  with  the  laws  of  the 
land,  or  this  charter,  or  the  resolutions  of  the  convention  at  Memphis, 
as  set  out  hereinbefore,  which  resolutions  are  hereby  adopted  as  a  part 
of  this  charter,  but  shall  make  all  by-laws  necessary  and  proper  to 
carry  out  the  object  of  said  resolutions,  as  well  as  for  the  management 
of  its  property,  and  the  regulation  of  its  affairs,  and  may  also  have 
power  to  pass  all  by-laws  necessary  to  the  use  of  the  powers  herein 
given,  or  which  by  law  may  hereafter  be  conferred;  and  all  said 
powers,  rights  and  privileges,  together  with  such  others  as  are  not  here¬ 
in  specially  given  and  referred  to,  are  hereby  conferred  upon  said 
corporation  in  as  full,  complete  and  ample  manner  as  by  the  laws  of 
the  State  the  same  can  or  might  be;  and  said  corporation  shall  have 
the  power  to  confer  all  the  degrees  of  merit  and  honor  usually  con¬ 
ferred  by  universities.  It  is  further  decreed  that  petitioners  pay  the 
costs  of  this  proceeding  and  that  the  Clerk  and  Master  issue  them  a 
certified  copy  of  this  decree.” 

By-Law  No.  2,  August,  1872 

On  August  22,  1872,  at  luka.  Miss.,  the  Board  met,  accepted  the 
charter,  confirmed  the  previous  election  of  officers  and  executive  com¬ 
mittee,  and  adopted  by-laws,  one  of  v/hich  was  as  follows : 


9 


— 8- 


*‘Xo.  2.  Since  the  charter  leaves  the  perpetuity  of  the  Board  in  its 
o\sTi  power,  we  request  the  several  Annual  Conferences  cooperating 
to  nominate  at  least  four  representatives  from  each.  So  soon  as  this 
shall  be  done,  the  present  Board  will  reorganize  in  such  manner  as  to 
secure  the  election  of  trustees  so  nominated,  and  that  thereafter,  when 
vacancies  shall  occur,  they  shall  be  filled  by  nominations  by  the  several 
Annual  Conferences,  and  confirmed  by  the  Board — it  being  understood 
that  the  Board  will  not  be  enlarged  beyond  the  first  number,  except 
so  far  as  shall  be  necessaiy*  to  give  four  members  to  each  one  of  the 
conferences  cooperating.” 

They  also  “Resolved,  the  executive  committee  are  empowered 
through  such  agents  as  they  may  employ  to  adopt  such  scheme  or 
schemes  as  thev  mav  deem  best  in  order  to  obtain  the  endowment, 
with  the  single  reserv'ation  that  none  of  the  principal  shall  be  used 
for  any  purpose  other  than  that  originally  intended  by  the  donor,  and 
that  we  advise  that  interest  in  all  available  cases  be  collected  semi¬ 
annually.  That  the  executive  committee  be  required  to  get  up  definite 
printed  forms  for  notes,  gifts,  bequests,  etc.” 

Addre33  of  Board  to  G)nferences,  August,  1872 

They  also  formulated  and  adopted  a  report  or  address  to  the 
Bishops  and  Annual  Conferences,  soon  to  be  assembled,  in  which  they 
recited  the  previous  appointment  of  committees,  their  meeting  and 
proceedings  at  Memphis,  the  appointment  of  this  Board  of  Trust  and 
its  proceedings,  as  hereinbefore  stated,  setting  out  in  full  the  charter, 
the  communications  to  and  from  the  Bishops  and  said  By-law  Xo.  2, 
above  quoted,  and  saying,  among  other  things : 

‘‘There  was  secured  the  cordial  approval  of  the  College  of  Bishops 
in  behalf  of  an  enterprise  which  promises,  in  connection  with  our  other 
'nstitiitions  of  learning,  to  accomplish  a  great  work  for  Christian  edu¬ 
cation,  under  Methodist  direction  and  control. 

“It  remains  for  the  action  of  the  convention,  and  the  Board  of 
Trust  appointed  by  it,  to  receive  the  sanction,  not  only  formal,  but 
hearty,  of  the  several  Annual  Conferences  represented  in  the  conven¬ 
tion.  and  not  only  their  sanction,  but  their  cooperation  in  the  use  of 
all  the  means  at  their  command. 

•  ••••*••••••••• 

‘‘The  action  of  the  convention  and  of  the  Board  of  Trust  is  now 
before  you. 

“It  has  all  been  taken  with  the  best  light  at  hand,  and,  at  the  same 


9- 


time,  in  deference  to  the  fact  that  it  requires  your  sanction  and  co¬ 
operation,  as  well  that  it  may  be  binding  upon  you  as  that  it  may  result 
in  the  success  of  the  enterprise  itself,  the  importance  of  which,  we 
doubt  not,  is  estimated  ver}'  highly  by  you,  as  it  is  by  ourselves. 


'^Asking  your  sanction  and  cooperation  with  us  in  behalf  of  the  Uni¬ 
versity,  and  particularly  your  aid  in  the  organization  of  a  system  of 
agencies  for  procuring  an  endowment  fund  of  $500,000,  we  now  com¬ 
mit  this  whole  subject  to  your  deliberation  and  action.” 

This  report,  or  address,  was  printed  in  pamphlet  form  and  fur¬ 
nished  during  the  fall  of  1872  to  the  several  Annual  Conferences  con¬ 
cerned.  Six  of  the  conferences  in  question  approved,  nominated  trus¬ 
tees  as  provided  in  By-law  No.  2,  most  of  whom  were  already  mem¬ 
bers  of  the  Board,  and  agreed  to  cooperate  in  efforts  to  raise  the  re¬ 
quired  endowment.  The  other  conferences  failed  to  act  or  approve. 

Meeting  of  Board,  January,  1873 

On  January  16,  1873,  the  Board  met  at  Brownsville,  Tenn.,  elected 
the  new  members  nominated  by  the  conferences,  reduced  the  number 
representing  the  Tennessee  Conference  from  six  to  four  by  requesting 
and  accepting  the  resignations  of  two  of  their  number,  that  each  con¬ 
ference  should  have  an  equal  representation  in  the  Board,  and  passed 
the  following  resolutions: 

''Resolved,  i.  That  the  members  previously  in  the  Board  under 
the  charter,  with  those  now  elected,  are  hereby  in  due  form  recognized 
as  the  representatives  of  their  several  Annual  Conferences,  which  have 
resolved  to  cooperate  in  behalf  of  the  Central  University,  there  being 
four  from  each  Annual  Conference — viz.,  Tennessee,  Memphis,  North 
Mississippi,  White  River,  Little  Rock  and  Arkansas. 

“2.  That  we  hereby  declare  vacant  the  seats,  as  members  of  the 
Board  under  the  charter,  of  those  persons,  all  of  them  now  absent, 
heretofore  recognized  as  representatives  of  the  North  Alabama,  Ala¬ 
bama,  Mississippi  and  Louisiana  Conferences,  these  conferences  hav¬ 
ing  failed  to  take  action  in  favor  of  the  Central  University.” 

They  also  revised  their  code  of  by-laws,  substituting  for  former 
By-law  No.  2  new  By-law  No.  7:  “Each  cooperating  conference,  be¬ 
ing  entitled  to  four  members  or  representatives  in  the  Board  of  Trust, 
should  any  vacancy  or  vacancies  occur,  the  Board  shall  fill  the  same, 
upon  the  nomination  of  the  conference  to  be  represented,”  and  added 


2 


-10- 


No.  8:  “These  by-laws  may  be  amended  at  any  annual  meeting  of 
the  Board  by  a  two- thirds  vote  of  all  the  members  present.'" 

Commodore  Vanderbilt’s  First  Gift,  March,  1873 

On  March  26,  1873,  at  a  called  meeting  of  the  Board  in  Nashville, 
Bishop  McTyeire,  “after  an  explanation  highly  satisfactory  to  the 
Board,”  submitted  a  letter  from  Mr.  C.  Vanderbilt,  dated  March  17, 
1873,  ss  follows,  to  wit: 

“To  Bishop  H.  N.  McTyeire,  of  Nashville:  I  make  the  following 
offer  through  you  to  the  corporation,  known  as  the  Central  University 
of  the  Methodist  Episcopal  Church,  South: 

“First — I  authorize  you  to  procure  suitable  grounds,  not  less  than 
from  twenty  to  fifty  acres,  properly  located,  for  the  erection  of  the 
following  work: 

“Second — To  erect  thereon  suitable  buildings  for  the  uses  of  the 
University. 

“Third — You  to  procure  plans  and  specifications  for  such  building^, 
and  submit  them  to  me,  and  when  approved,  the  money  for  the  fore¬ 
going  objects  to  be  furnished  by  me  as  it  is  needed. 

“Fourth — The  sum  included  in  the  foregoing  items,  together  with 
the  ‘endowTnent  fund,"  and  the  ‘librar}*  fund,"  shall  not  be  less,  in  the 
aggregate,  than  five  hundred  thousand  ($500,000)  dollars,  and  these 
last  two  funds  shall  be  furnished  to  the  corporation  as  soon  as  the 
buildings  for  the  University  are  completed  and  ready  for  use. 

“The  foregoing  being  subject  to  the  following  conditions: 

“First.  That  you  accept  the  presidency  of  the  Board  of  Trust, 
receiving  therefor  a  salary  of  three  thousand  ($3,000)  dollars  per  an¬ 
num,  and  the  use  of  dwelling  house,  free  of  rent,  on  or  near  the  Uni¬ 
versity  grounds. 

“Second.  Upon  your  death  or  resignation,  the  Board  of  Trust 
shall  elect  a  president. 

“Third.  To  check  hasty  and  injudicious  appropriations  or  meas¬ 
ures,  the  president  shall  have  authority,  whenever  he  objects  to  any  act 
of  the  Board,  to  signify  his  objections,  in  writing,  within  ten  days 
after  its  enactment,  and  no  such  act  to  be  valid  unless,  upon  recon¬ 
sideration,  it  be  passed  by  a  three-fourths  vote  of  the  Board. 

“Fourth.  The  amount  set  apart  by  me  as  an  endowment  fund  shall 
be  forever  inviolable,  and  shall  be  kept  safely  invested,  and  the  interest 
or  revenue  only  used  in  carrying  on  the  University.  The  form  of  in- 


-11- 


vestment  which  I  prefer,  and  in  which  I  reserve  the  privilege  to  give 
the  money  to  said  fund,  is  in  seven  per  cent  first  mortgage  bonds  of 
the  New  York  Central  &  Hudson  River  Railroad  Company,  to  be 
registered  in  the  name  of  the  corporation,  and  to  be  transferable  only 
upon  a  special  vote  of  the  Board  of  Trust. 

“Fifth.  The  University  is  to  be  located  in  or  near  Nashville,  Tenn. 

“Respectfully  submitted, 

“C.  Vanderbilt.^' 

Thereupon,  with  a  suitable  preamble,  the  Board  adopted  the  follow¬ 
ing  resolutions : 

“Resolved  (i).  That  we  accept,  with  profound  gratitude,  the  dona¬ 
tion,  with  all  the  terms  and  conditions  specified  in  said  proposition. 

“Resolved  (2),  That,  as  an  expression  of  our  appreciation  of  this 
liberality,  we  instruct  the  committee,  hereinafter  mentioned,  to  ask 
the  Honorable  Chancery  Court  to  change  the  name  and  style  of  our 
corporation  from  ‘The  Central  University  of  the  Methodist  Episcopal 
Church,  South,’  to  ‘Vanderbilt  University’ ;  and  that  the  institution, 
thus  endowed  and  chartered,  shall  be  from  henceforth  known  and 
called  by  this  name. 

“Resolved  (3),  That  the  Hon.  M.  Brown,  the  Hon.  E.  H.  East 
and  the  Rev.  D.  C.  Kelley,  D.D.,  be,  and  they  are  hereby,  authorized 
and  requested  to  obtain,  at  the  earliest  practicable  day,  such  modifi¬ 
cations  of  our  charter  as  will  enable  this  Board  to  conform  its  future 
operations  to  the  conditions  aforesaid. 

“Resolved  (4),  That  the  secretary  is  requested  to  convey  to  Mr.  C. 
Vanderbilt  the  sincere  thanks  of  this  Board,  and  a  copy  of  these  reso¬ 
lutions.” 

Bishop  McTyeire  had  not  solicited  this  donation,  but  while  lately 
in  New  York  was  a  guest  of  Mr.  C.  Vanderbilt  in  his  home  (their 
wives  being  cousins),  and  evidently  had  acquainted  Mr.  Vanderbilt 
with  the  project  of  this  University,  and  probably  furnished  him  a  copy 
of  the  printed  pamphlet,  hereinbefore  referred  to,  containing  its  char¬ 
ter,  by-laws,  etc.,  which  had  been  submitted  to  the  conferences ;  and 
Mr.  Vanderbilt  was  so  impressed  with  the  enterprise  that  he  volun¬ 
tarily  made  the  proposition  aforesaid. 

Thereupon,  the  then  president,  Judge  Milton  Brown,  resigned,  and 
the  Board  elected  Bishop  McTyeire,  not  previously  a  member,  president 
of  the  Board  of  Trust,  which  position  he  held  during  his  life. 


12 


Amended  Charter  of  1873 

On  April  23,  1873,  in  the  Chancery  Court  at  Nashville,  a  petition 
to  amend  its  charter  was  filed  by  the  University,  as  follows : 

“The  Central  University  of  the  Methodist  Episcopal  Church,  South. 

Ex  parte. 

“To  the  Honorable  W.  F.  Cooper,  Chancellor,  etc. : 

“The  petition  of  the  Central  University  of  the  Methodist  Episcopal 
Church,  South,  a  corporation,  chartered  heretofore  by  the  Chancery 
Court  at  Nashville. 

“Petitioner  would  state  to  your  honor  that  heretofore,  by  a  decree 
of  record  in  this  court,  it  was  chartered  as  a  University  of  learning — 
a  certified  copy  of  its  charter  is  here  filed,  marked  ‘Exhibit  B,’  and 
made  a  part  of  this  petition.  Since  it  has  obtained  its  charter  its  con¬ 
dition  is  so  altered  that  it  now  desires  to  have  an  amendment  to  its  said 
charter,  which  amendments  are  as  follows: 

“It  having  been  thought  politic  to  limit  the  number  of  the  Board 
of  Trust  to  four  from  each  cooperating  conference,  the  names  of 
Jordan  Stokes  and  Robert  A.  Young  be  dropped  from  the  list.  Some 
conferences  not  having  cooperated  in  the  purposes  of  said  institution, 
it  is  now  desirable  to  omit  from  the  list  of  Trustees  the  names  of  the 
persons  heretofore  incorporated,  and  who  represented  said  confer¬ 
ences,  as  follows,  viz :  Christopher  D.  Oliver  and  William  Dickson, 
of  the  North  Alabama  Conference;  Edward  Wadsworth  and  W.  W. 
Byrd,  of  the  Alabama  Conference;  W.  L.  C.  Hunnicutt  and  Thomas 

f  _ 

Christian  of  the  Mississippi  Conference;  and  James  L.  Borden  and 
William  H.  Foster  of  the  Louisiana  Conference. 

“A  large  donation  having  been  made  to  petitioner  by  C.  Vanderbilt, 
of  New  York,  of  not  less  than  $500,000,  as  set  out  in  ‘Exhibit  C,’  here¬ 
with  filed  and  made  a  part  of  this  petition,  petitioner  prays  that  its 
name  and  style  be  changed  to  that  of  ‘The  Vanderbilt  University,’  and 
that  the  terms  and  conditions  of  said  gift  be  incorporated  as  a  part  of 
said  charter. 

“Petitioner  also  prays  that  the  words  ‘or  the  resolutions  of  the 
convention  at  Memphis  set  out  herein,  which  resolutions  are  hereby 
adopted  as  a  part  of  this  charter,’  on  page  12  of  the  printed  charter 
here  filed,  be  stricken  out  and  omitted,  and  that  said  charter  may  be 
so  altered  and  amended  as  to  read  as  set  out  in  ‘Exhibit  D,’  here  filed 
and  made  a  part  of  this  petition.  Petitioner  asks  that  this  be  done  in 
order  that  the  ends  of  its  creation  may  be  the  more  readily  attained. 


—13 


“Petitioner  prays  general  and  full  relief  in  the  premises. 

“Edward  H.  East,  Solicitor/* 

Publication  was  duly  made  as  required  by  law,  and  on  June  i6,  1873, 
Chancellor  Cooper  pronounced  and  entered  the  following  decree: 

“In  the  matter  of  the  Central  University  of  the  Methodist  Episcopal 
Church,  South. 

“This  matter  came  on  this  day  to  be  heard  before  the  Chancellor 
Upon  the  petition  heretofore  filed,  and  publication  of  the  matter  thereof 
having  heretofore  been  made,  according  to  the  statutes  in  such  cases 
made  and  provided,  the  court  is  pleased  to  order  and  decree  that  the 
name  and  style  of  The  Central  University  of  the  Methodist  Episcopal 
Church,  South,  a  corporation  heretofore  chartered  under  the  constitu¬ 
tion  and  laws  of  this  State  as  a  university  of  learning,  and  with  all  the 
powers,  rights  and  privileges  of  such  corporations  as  are  now  given 
and  conferred  by  the  laws  of  the  State  of  Tennessee,  or  may  hereafter 
be  given  or  conferred,  be  changed  to  the  name  and  style  of  The  Van¬ 
derbilt  University,  by  which  name  it  shall  hereafter  be  known,  and 
sue  and  be  sued,  hold  and  receive  property,  confer  degrees,  and  do 
any  and  all  things  which  by  the  present  and  future  laws  of  Tennes¬ 
see  it  may  be  empowered  to  do. 

“It  is  further  decreed  that  all  the  rights  of  property,  powers  of 
contract,  privileges,  immunities  and  franchises  which  heretofore  by  law 
under  the  decree  of  this  court  were  conferred  upon  the  said  corpora¬ 
tion,  under  the  name  and  style  of  The  Central  University  of  the  Meth¬ 
odist  Episcopal  Church,  South,  and  the  property  or  rights  thereto 
which  have  heretofore  been  secured  to  said  corporation,  pass  to  The 
Vanderbilt  University  and  its  assigns,  forever,  for  the  purposes  of  said 
corporation;  and  that  it  have  the  power  to  pass  by-laws,  resolutions, 
etc.,  not  inconsistent  with  the  laws  of  the  land,  and  to  increase  and 
diminish  the  number  of  its  trustees  and  directors  and  do  and  perform 
any  and  all  acts  allowable  by  law  to  corporations  of  learning.  It  is  fur¬ 
ther  decreed  that  said  Vanderbilt  University  pay  the  cost  of  this  pro¬ 
ceeding  for  which  £.  fa.  issue.” 

Source  of  Endowment  and  Plant 

In  the  meantime  Bishop  McTyeire  and  the  Board  proceeded  to  ac¬ 
quire  the  grounds,  procure  plans  for  buildings,  etc.,  as  provided  by 
Mr.  Vanderbilt’s  offer,  and  otherwise  carry  out  its  terms  and  con¬ 
ditions. 

Citizens  of  Nashville  contributed  about  $30,000  toward  the  pur¬ 
chase  of  the  campus  of  the  University. 


—14— 


From  time  to  time  within  the  next  year  or  two  Mr.  C.  Vanderbilt 
increased  his  donations  to  a  million  dollars,  and  subsequently  other 
members  of  the  Vanderbilt  family  added  to  the  funds  of  the  University 
for  its  enlargement  and  endowment,  in  round  numbers  another  million 
dollars. 

At  the  time  of  Mr.  C.  Vanderbilt’s  first  gift  subscriptions  from 
other  persons  in  small  amounts,  and  of  no  very  considerable  aggregate, 
had  been  procured  by  agents  of  the  University,  but  little  or  nothing 
had  been  paid  thereon.  The  whole  amount  promised  fell  far  short  of 
the  minimum  upon  which,  under  the  Memphis  resolutions,  the  Board 
was  authorized  to  open  any  department  of  the  University.  Hence,  at 
that  time,  the  Board  resolved  “that  our  agents  be  requested  to  double 
their  diligence  to  secure,  if  possible,  the  remaining  half  million  of  en¬ 
dowment  by  the  ensuing  sessions  of  the  Annual  Conferences.”  This, 
however,  they  never  succeeded  in  doing. 

It  further  appears  that  whatever  funds  were  realized  from  sub¬ 
scriptions  previous  to  the  Vanderbilt  gifts  were  subsequently  devoted  to 
the  “sustenance  fund”  to  pay  the  personal  expenses  of  students  in  the 
theological  department. 

After  the  original  Vanderbilt  gift,  other  donations  were  made  to 
purchase  the  campus,  for  special  endowments  of  particular  chairs, 
scholarships  and  other  specific  purposes,  but  it  does  not  appear  that 
anything  was  added  to  the  general  endowment  of  the  University 
except  by  Mr.  C.  Vanderbilt  himself  and  other  members  of  the  family. 

Garland  Resolution 

Now,  reverting  to  the  proceedings  of  the  Board  of  Trust,  we  find 
that  at  a  meeting  on  January  14,  1874,  they  accepted  the  amended 
charter,  again  resolved  to  exclude  members  from  the  nonparticipating 
conferences,  and  that  the  six  cooperating  were  entitled  to  representa¬ 
tion. 

At  their  meeting  on  September  30,  1874,  Bishop  McTyeire  an¬ 
nounced  the  death  of  Eh-.  Green,  one  of  their  members,  and  in  his 
address  stated: 

“Another  vacancy  or  two  will  occur  in  the  Board  by  the  transfer 
of  members  beyond  the  patronizing  conferences,  I  suggest  that  it  is 
very  important  so  to  amend  the  by-laws  that  this  Board  may  have  the 
initiative  in  filling  vacancies  by  nomination  of  the  successors,  the  con¬ 
ferences  confirming.  This  reverses  the  order  followed  in  originally 
making  up  the  Board.  For  obvious  reasons,  while  as  yet  the  patron- 


—15— 


izing  conferences  were  to  be  determined  by  their  own  action,  it  was 
left  to  them,  as  they  concurred  in  the  plan  outlined  by  the  convention 
at  Memphis,  to  name  persons  to  represent  them  in  organizing. 

‘‘But  since  the  charter  leaves  the  pen>etuity  of  the  Board  in  its  own 
power,  we  should  keep  up  the  conference  representation  on  the  prin¬ 
ciple  here  suggested.  The  constituency,  the  fitness  and  the  safety  of 
the  Board  having  this  vast  and  growing  interest  in  trust  will  be  very 
uncertain  if,  by  popular  election,  on  hasty  and  perhaps  ill-considered 
grounds  of  choice,  its  future  members  are  to  be  supplied.  Whereas, 
the  Board  knows  its  own  wants,  is  familiar  with  the  nature  of  the  work 
to  be  done,  has  the  University  and  its  interests  in  mind  and  on  heart, 
and  is  ever  watchful  of  its  welfare  and  on  the  lookout  for  suitable 
instruments  and  agents  to  promote  it.  As  the  whole  matter  is  covered 
by  a  resolution  of  your  body,  it  may  be  adjusted  readily.  And  a  pre¬ 
cedent  should  now  be  set  in  filling  the  first  vacancies.  If  possible,  this 
Board  should  send  up  its  nominations  to  the  ensuing  conferences.  This 
course  is  not  only  demanded  by  provident  wisdom,  but  is  in  analogy 
with  other  and  the  oldest  institutions  of  learning  under  the  care  of  the 
church.  The  Board  elects  or  nominates,  and  the  Annual  Conference 
confirms.” 

Whereupon  the  Board  passed  what  is  known  as  the  Garland  reso¬ 
lution  : 

“Forasmuch  as  the  charter  of  Vanderbilt  University  confers  upon 
its  Board  of  Trust  the  exclusive  right  and  power  to  fill  vacancies  that 
may  occur  in  its  own  body,  and  as  this  power  cannot  be  delegated  to 
any  other  body  of  persons  whatsoever;  therefore,  be  it 

''Resolved,  That  this  Board  will  now  proceed  to  fill  the  vacancies 
which  have  been  created  by  the  death  of  the  late  Dr.  Green  and  by 
the  transfer  of  the  Rev.  W.  C.  Hearn  to  the  Denver  Conference. 

“But  in  order  to  maintain  the  closest  connection  with  the  patron¬ 
izing  conferences,  the  Board  submits  these  and  every  other  election  to 
fill  a  vacancy  in  its  own  body  to  the  confirmation  of  the  Annual  Con¬ 
ference  from  which  the  election  is  made.” 

They  then  elected  two  Trustees  to  fill  these  vacancies,  and  in¬ 
structed  the  Secretary  to  convey  this  information  to  the  two  con¬ 
ferences  concerned  and  ask  for  the  confirmation  of  these  elections; 
also  to  send  a  copy  of  the  recorded  action  of  the  Board,  to-wit,  the 
Garland  resolution.  The  records  of  one  of  these  conferences  (Ten¬ 
nessee)  show  that  this  was  done,  and  it  made  the  following  response: 


16— 


'  ''Resolved  (i),  That  in  view  of  the  relations  already  established  by 
contract  between  the  Tennessee  Conference  and  Vanderbilt  University, 
we  proceed  now  to  nominate  one  of  our  members  to  fill  the  vacancy  in 
the  Board  of  Trust  caused  by  the  death  of  Dr.  Green  and  that  we  nomi¬ 
nate  Dr.  R.  A.  Young. 

“(2)  That  in  response  to  the  request  of  the  Board  of  Trust  we 
consent  to  modify  the  original  contract  so  that  hereafter  when  a  va¬ 
cancy  occurs  the  Board  may  nominate  one  of  our  own  members  to 
us  for  confirmation,  the  nominee  not  to  be  a  member  of  the  Board  until 
confirmed  by  us.’^ 

Readmission  of  Alabama  (North  Alabama)  Conference 

In  the  fall  of  1874  the  Alabama  Conference,  theretofore  excluded 
for  failure  to  cooperate  under  the  charter,  decided  to  come  in,  and 
nominated  four  members  to  represent  it  on  the  Board  of  Trust. 

In  May,  1875,  the  Board  rescinded  its  former  action,  excluding 
members  from  the  Alabama  Conference,  and  elected  the  four  named 
by  that  conference.  At  the  same  time  they  amended  their  by-law  7 
to  conform  to  the  Garland  resolution,  elected  two  new  members  to  fill 
vacancies  from  the  North  Mississippi  Conference,  and  directed  that 
this  action  be  reported  to  that  conference  for  confirmation. 

Reduction  of  Conference  Representatives  from  Four  to  Two 

In  1880,  the  President,  Bishop  McTyeire,  recommended  that  the 
members  of  the  Board  be  reduced  from  four  to  two  from  each  con¬ 
ference,  and  that  the  Louisville  Conference,  not  heretofore  connected 
with  the  enterprise,  be  admitted  and  represented  on  the  Board  as  one  of 
the  cooperating  conferences. 

In  1881  a  committee  reported  in  favor  of  the  proposed  reduction, 
and  that  it  be  referred  to  the  conferences  for  concurrence. 

This  report  was  tabled,  and  the  matter  referred  to  another  com¬ 
mittee,  of  which  Judge  East  was  Chairman. 

In  1882  this  committee  reported,  “Contrary  to  the  view  it  first 
entertained  that  this  matter  was  a  charter  question,  that  it  is  simply  a 
by-law  question,  the  charter  being  silent  on  the  subject;  and  the  whole 
matter  is  subject  to  By-law  7,  and  the  by-laws  may  be  changed  or 
amended  at  any  annual  meeting  of  the  Board  by  a  two-thirds  vote 
of  all  the  members  present;”  and  recommended  a  change  of  the  by¬ 
law  to  that  effect.  The  report  was  adopted,  and  the  by-law  so  amended. 
No  action  of  the  conferences  was  asked  or  taken  on  the  subject. 


17— 


Action  of  Board  in  1884  and  1888 

In  1884  two  members  from  the  Louisville  Conference  were  elected 
by  the  Board,  and  reported  to  the  conference  for  confirmation. 

In  1888  the  term  of  menrhership  was  reduced  by  the  Board  from 
life  to  eight  years.  This  action  was  referred  to  the  conferences  for  con¬ 
currence,  and  they  approved. 

Chancellor  and  Bishops  Made  Ex  Officio  Members,  and  Non- 
Conference  Members  Admitted,  1894 

In  1894  the  Board  amended  its  by-laws  so  as  to  admit  to  membership 
ex  officio  the  Chancellor  of  the  University  and  the  Bishops  of  the 
church;  also  “four  additional  members,  without  regard  to  their  location 
in  any  particular  one  of  the  patronizing  conferences."'  Their  election 
was  not  made  subject  to  confirmation,  and  the  Board  declined  to  make 
its  amended  by-law  subject  to  the  concurrence  of  the  patronizing  con¬ 
ferences. 

Redaction  of  Conference  Representatives  from  Two  to  One 

In  1895,  Chancellor  Kirkland,  in  his  address  to  the  Board,  sug¬ 
gested  that  some  change  in  the  method  of  electing  Trustees  and  in  the 
constitution  of  the  Board  should  be  made,  so  as  to  relate  the  University 
more  closely  to  the  whole  church,  and  constitute  it  the  central  university 
of  Southern  Methodism.  This  was  referred  to  a  committee,  who,  in 
1896,  reported  as  follows: 

“i.  We  think  it  very  impyortant  that  Vanderbilt  University  should 
be  closely  allied  to  the  whole  church,  as  the  central  university  of  South¬ 
ern  Methodism. 

“2.  We  believe  this  can  be  partially  effected,  even  now,  by  in¬ 
creasing  the  number  of  Trustees  who  are  selected  independently  of  our 
eight  patronizing  conferences. 

“3.  We  recommend  that  the  by-laws  be  amended  so  as  to  give  only 
one  representative  to  each  of  the  eight  patronizing  conferences;  and 
that  the  eight  vacancies  thus  created  be  filled  by  the  selection  of  repre¬ 
sentative  men,  without  regard  to  geographical  limitation. 

“4.  As  the  best  method  of  effecting  this  result  we  suggest,  as  the 
terms  of  the  present  members  expire,  the  Board  select  only  one  repre¬ 
sentative  for  each  patronizing  conference,  and  we  suggest  that  each 
patronizing  conference  be  requested  to  approve  this  change  in  the  by¬ 
laws  and  accept  the  reduction  from  two  to  one  representative." 


—18— 


The  Board  adopted  this  report  and  amended  its  by-laws  accord¬ 
ingly.  The  conferences  approved  this  action. 

Severance  of  Relationship  with  Annual  Conferences,  and  Establish¬ 
ment  of  Relationship  with  General  Conference,  1895- 

1898 — Memorial  of  1898 

In  1897  the  Chancellor,  in  his  address,  suggested  further  changes 
along  this  line,  and  a  committee  to  whom  the  subject  was  referred 
reported : 

'‘We  recommend  that,  in  order  that  Vanderbilt  University  may  be 
related  to  the  church  as  the  central  university  of  Southern  Methodism, 
and  may  assume  a  connectional  relationship  to  the  whole  church  as  the 
crowning  feature  of  our  educational  system,  the  consent  of  the  patron¬ 
izing  conferences  be  asked  to  the  proposition  that  hereafter  the  Board 
of  Trustees  be  selected  from  the  entire  church,  without  regard  to  geo¬ 
graphical  limitation,  and  to  be  confirmed  by  the  General  Conference. 
In  order  to  secure  such  consent,  the  Chancellor  of  the  University  is 
requested  to  submit  this  proposition  to  the  several  patronizing  confer¬ 
ences  at  the  next  annual  sessions.  We  furthermore  suggest  that  a 
resolution  be  submitted  to  the  next  General  Conference  asking  the 
adoption  of  this  University  as  the  central  institution  of  the  Methodist 
Episcopal  Church,  South.” 

This  report  was  adopted  and  a  committee  composed  of  three  Bishops 
appointed  to  prepare  a  memorial  to  the  General  Conference.  This  mat¬ 
ter  was  referred  to  the  Annual  Conferences,  and  all  except  the  Louisville 
Conference,  which  deferred  action,  passed  resolutions  expressing  will¬ 
ingness  to  transfer  to  the  General  Conference  “all  rights,  title  and 
interest  that  we  have  in  said  University,  and  hereby  solicit  the  coopera¬ 
tion  of  all  the  conferences  represented,  and  the  Board  of  Trust,  in 
securing  this  desirable  end. 

“2.  That  until  this  is  accomplished  we  adhere  to  the  status  secured 
to  us  by  contract,  which  gives  us  a  controlling  voice  in  the  appointment 
of  our  representatives  on  the  Board  of  Trust.” 

In  1908  the  Louisville  Conference  took  similar  action. 

In  the  meantime  the  committee  of  the  Board  of  Trust,  composed  of 
three  Bishops,  presented  to  the  General  Conference  of  the  M.  E.  Churchy 
South,  which  met  in  Baltimore  in  May,  1898,  a  memorial  as  follows : 

“The  undersigned,  constituting  a  committee  appointed  by  the  Board 
of  Trust  of  Vanderbilt  University  to  make  a  special  report  to  the  Gen¬ 
eral  Conference  of  the  M.  E.  Church,  South,  beg  leave  to  present  this 


—19— 


communication  with  reference  to  the  University  and  its  relation  to  the 
whole  church.  Vanderbilt  University,  as  is  well  known,  has  heretofore 
been  the  central  institution  of  eight  patronizing  conferences.  The  title 
to  the  property  is  vested  in  a  Board,  to  be  held  in  trust  for  these  confer¬ 
ences  of  the  Methodist  Episcopal  Church,  South.  For  several  years  the 
Board  has  had  under  consideration  a  plan  to  make  the  University  en¬ 
tirely  connectional  and  relate  it  directly  to  the  whole  church.  The  plan 
proposed  is  to  have  the  patronizing  conferences  transfer  their  rights  in 
the  University  to  the  General  Conference,  and  to  have  the  General 
Conference,  by  proper  resolution,  accept  the  patronage  of  the  Univer¬ 
sity  and  consent  to  assume  toward  this  enterprise  the  same  relation 
heretofore  held  by  the  separate  conferences.  The  Board  of  Trust  has 
officially  expressed  its  approval  of  this  plan,  and  most  of  the  patron¬ 
izing  conferences  have  done  the  same  thing. 

“By  the  charter  of  the  University  the  Board  of  Trust  is  vested 
with  the  power  and  obligation  to  fill  its  own  vacancies,  but  the  election 
of  any  member  is  not  valid  under  the  law  of  the  University  until  said 
member  has  been  confinned  by  the  conference  which  he  is  designed 
to  represent.  Under  the  new  plan,  the  Board  would  be  at  liberty  to 
select  its  members  without  geographical  restrictions  of  any  kind,  and 
the  General  Conference  would  confirm  or  reject  the  appointment.  This 
duty  could  be  exercised  either  by  the  General  Conference  as  a  body, 
or  it  could  be  delegated  by  the  conference  to  some  board,  itself  the 
creature  of  the  General  Conference.  Naturally  the  Board  of  Education 
will  be  thought  of  in  this  connection.  This  Board  meets  every  year, 
and  is  likely  to  be  charged  more  and  more  with  the  oversight  of  our 
institutions  of  learning.  It  is  now  trying  to  devise  methods  for  cor¬ 
relating  all  our  colleges  and  universities,  and  it  would  be  appropriate 
for  the  General  Conference  to  exercise  its  control  of  Vanderbilt  Uni¬ 
versity  largely  through  the  Board.  In  that  manner  vacancies  in  the 
Board  of  Trust  of  the  University  could  be  filled  every  year,  and  it 
would  not  be  necessary  to  wait  four  years  for  action  that  might  be 
promptly  needed. 

“As  a  committee,  therefore,  of  the  Board  of  Trust  of  Vanderbilt 
University,  we  beg  to  present  this  matter  to  the  General  Conference, 
and  invite  such  action  as  may  be  adjudged  right  and  proper. 

“A.  W.  Wilson, 

“Charles  B.  Galloway, 

“Eugene  R.  Hendrix.'' 


—20— 


The  General  Conference  accepted  this  proposal  in  the  following 
resolutions : 

“First.  That  the  General  Conference  of  the  M.  E.  Church,  South, 
hereby  accepts  the  proposed  relation  and  control  of  the  Vanderbilt 
University,  and  commits  to  the  General  Board  of  Education  the  con¬ 
firmation  of  all  Trustees  selected  by  the  Board  of  Trust  of  Vanderbilt 
University. 

“Second.  That  this  resolution  take  effect  as  soon  as  the  consent 
of  all  the  present  patronizing  conferences  has  been  obtained,  all  the 
necessary  legal  steps  taken,  and  preliminary  details  arranged.” 

This  relation  between  the  University  and  the  General  Conference 
was  maintained  from  1898  to  1910. 

The  Board’s  Action  in  1905 

In  1905,  the  Board  repealed  the  by-law  making  the  Chancellor  and 
Bishops,  thirteen  in  number,  ex  officio  members,  and  adopted,  in  lieu, 
one  making  the  Chancellor  and  five  Bishops,  selected  according  to  their 
seniority,  regular  members  of  the  Board,  and  made  nominations 
accordingly  to  the  General  Board  of  Education  for  confirmation. 

The  Board,  at  the  same  time,  determined  to  take  out  an  amended 
charter,  under  act  of  1875,  ch.  142,  prepared  and  signed  an  applica¬ 
tion  therefor,  but  some  of  the  members  subsequently  withdrew  their 
names,  and  it  was  not  filed.  These  and  other  matters  created  some 
dissatisfaction  in  the  minds  of  some  of  the  Bishops  and  members  of 
the  General  Conference,  and  hence,  at  its  session  in  1906,  the  General 
Conference  adopted  a  report  of  its  committee  on  education,  in  part  as 
follows : 

Appointment  of  Vanderbilt  Commission  by  General  Conference 

of  1906 — Its  Report 

“There  can  be  no  question  as  to  the  ownership  of  the  University 
by  the  Methodist  Episcopal  Church,  South,  or  as  to  the  charter  rights 
of  all  the  Bishops;  but,  in  view  of  certain  questions  which  must  be 
authoritatively  decided,  we  recommend  the  appointment  by  this  Gen¬ 
eral  Conference  of  a  commission  of  five  laymen  of  the  Methodist 
Episcopal  Church,  South,  as  follows: 

“i.  To  inquire  into  and  determine  the  present  relations  of  the 
Vanderbilt  University  to  the  Methodist  Episcopal  Church,  South. 

“2.  To  take  legal  steps,  if  necessary,  to  perfect  the  transfer  of  the 
University  from  the  patronizing  conferences  to  the  General  Confer¬ 
ence  of  the  Methodist  Episcopal  Church,  South. 


—21 


‘*3-  To  define  the  charter  rights  of  the  Bishops  of  the  Methodist 
Episcopal  Church,  South;  and,  when  so  defined,  the  Bishops  are  here- 
by  instructed  to  enter  on  the  same.” 

That  commission  was  composed  of  five  eminent  lawyers,  who,  after 
extended  investigation  and  hearing  of  all  who  cared  to  be  heard,  made 
to  the  General  Conference  at  its  session  of  1910  an  extended  report 
(previously  prepared  and  filed  in  December,  1906) ;  and  its  conclu¬ 
sions  are  fairly  well  summarized  by  appellants  as  follows: 

“(a)  That  the  petitioners,  who  applied  for  and  obtained  the  char¬ 
ter  of  the  University,  and  who  were  thereby  declared  to  be  the  ‘body 
politic  and  corporate,’  were  not  the  members  of  the  corporation,  but 
that  the  cooperating  Annual  Conferences  were  the  real  members  of 
the  corporation;  and 

“(b)  That  the  University  was  not  founded  by  Mr.  Vanderbilt, 
but  by  the  Annual  Conferences ;  and 

“(c)  That  since  1898  the  General  Conference,  as  assignee  of  these 
Annual  Conferences,  had  been  the  member,  and  the  sole  member,  of 
the  corporation ;  and 

“(d)  That  the  Bishops  had  no  authority  in  law,  or  power  under 
the  charter,  as  members  either  of  the  corporation  or  of  the  Board  of 
Trust,  and  either  alone  or  jointly  with  the  Board,  or  as  members  ex 
officio;  but 

“(e)  That,  by  virtue  of  the  ninth  of  the  Memphis  resolutions,  made 
a  part  of  the  charter,  the  Bishops  were  visitors  of  the  University,  with 
common  law  visitorial  powers.” 

Action  of  Board  of  Trust  Respecting  Report  of  Vanderbilt 

Commission 

A  copy  of  this  report  was  filed  with  the  Board  of  Trust,  who  passed 
the  following  resolutions: 

” Resolved,  i.  That  we  cordially  receive  the  same  and  direct  that  it 
be  filed  with  the  records  of  this  Board. 

“2.  That  we  hereby  express  our  appreciation  of  the  ability  and 
fidelity  with  which  the  members  of  the  commission  have  discharged 
their  important  duties. 

“3.  That,  recognizing  and  rejoicing  in  the  ownership  of  the  church 
in  the  University,  and  all  the  responsibilities  arising  therefrom,  we  wel¬ 
come  any  supervision  by  the  College  of  Bishops  that  may  aid  us  in 
executing  the  great  trust  committed  to  our  hands,  so  as  to  insure  the 
observance  of  the  charter,  the  conditions  of  specific  gifts  and  the 
statutes  of  the  State.” 


—22— 


Complainants  now  insist  that  this  was  an  acceptance  by  the  Board 
of  the  conclusions  of  the  commission.  The  Chairman  of  the  commis¬ 
sion  did  not  so  construe  it,  and  in  this  view  the  General  Conference 
and  its  Committee  on  Education  seem  to  have  agreed  with  him ;  and  so 
do  we.  We  need  not  inquire  what  effect,  if  any,  such  an  acceptance 
would  have. 

Asheville  GenerzJ  Conference  of  1910 

The  General  Conference  adopted  the  report  and  resolved,  in  part,  as 
follows : 

‘‘Resolved  (i).  That  this  General  Conference  hereby  accepts  the 
report  of  the  Vanderbilt  Commission  as  a  definition  of  the  rights  of  the 
Methodist  Episcopal  Church,  South,  to  Vanderbilt  University;  more¬ 
over,  that  it  accepts  the  judgment  of  the  commission  that  the  College 
of  Bishops  is  a  board  of  common  law  visitors  of  the  University;  and, 
furthermore,  that  it  accepts  the  finding  of  the  commission  that  the  Gen¬ 
eral  Conference  has  the  right  to  select  the  Board  of  Trustees  in  such 
manner  as  it  may  elect,  either  by  direct  election  by  the  conference  itself 
or  through  such  agency  or  agencies  as  it  may  designate. 

“Resolved  (2),  That  it  is  the  sense  of  this  General  Conference  that 
its  right  to  select  the  Board  of  Trust  of  Vanderbilt  Universitv  and  fill 
vacancies  in  the  same  should  now  be  exercised,  and  hereafter  at  its  dis¬ 
cretion  ;  and,  it  being  ascertained  that  vacancies  now  exist  in  the  Board 
of  Trust  of  said  University,  the  following-named  members  of  the  Meth¬ 
odist  Episcopal  Church,  South,  are  hereby  elected  to  fill  said  vacancies, 
namely : 

“Resolved  (3),  That,  following  this  election  the  General  Confer* 
ence  will,  for  the  future,  continue  the  method  of  choosing  the  Trustees 
adopted  by  the  General  Conference  held  at  Baltimore  in  1898,  when  it 
committed  ‘to  the  General  Board  of  Education  the  confirmation  of  all 
Trustees  elected  by  the  Board  of  Trust  of  Vanderbilt  University.’ 

“Resolved  (4),  That  the  General  Conference  approves  the  action 
of  the  Bishops  in  entering  upon  the  discharge  of  their  duties  as  visitors 
of  the  University.” 

Subject-Matter  of  Controversy 

In  pursuance  of  said  second  resolution,  it  elected  the  relators,  V.  A. 
Godbey,  N.  E.  Harris  and  Albert  W.  Biggs,  as  Trustees,  and  ordered 
their  election  certified  to  the  Board.  At  the  next  meeting  of  the  Board 
of  Trust,  in  Tune,  1910,  said  parties,  so  elected,  applied  to  be  admitted 


as  members,  but  the  Board  refused  their  application,  and  resolved,  by 
a  vote  of  19  to  8,  that  the  General  Conference  had  no  right  to  elect 
members  to  fill  the  vacancies  in  the  Board ;  that  the  Board  itself  had  that 
right;  that  it  amend  its  by-laws  accordingly,  and  proceed  to  fill  the 
existing  vacancies.  Therefore  it  elected  for  that  purpose  and  seated 
the  defendants,  Claude  Waller,  R.  F.  Jackson  and  James  A.  Robins, 
instead  of  the  persons  elected  thereto  by  the  General  Conference.  After¬ 
wards,  on  July  12,  1910,  the  College  of  Bishops  met  as  visitors  of  the 
University,  vetoed  this  action  of  the  Board,  declaring  it  illegal,  null  and 
void,  and  sustained  the  right  of  the  General  Conference  to  elect,  and 
of  its  appointees  to  membership  in  the  Board.  Thereupon  this  bill 
was  filed  by  the  State,  at  the  relation  of  the  College  of  Bishops  and 
Messrs.  Godbey,  Harris  and  Biggs,  against  the  University,  the  Board 
of  Trust,  and  Messrs.  Waller,  Jackson  and  Robins,  seeking  to  establish 
and  enforce  the  alleged  rights  of  the  relators,  as  hereinbefore  indi¬ 
cated. 

THE  BOARD  OF  TRUST  IS  A  SELF-PERPETUATING  BODY 

I  The  controversies  in  this  case  are  not  so  much  of  fact  as  of  proper 
construction  of  documents  and  written  records  of  various  kinds 
offered  in  evidence,  and  of  questions  of  law  arising  thereon.  We  will 
now  pass,  to  a  consideration  and  decision  of  these  questions. 

The  University  was  incorporated  under  the  Act  of  1871,  Chapter 
54.  Section  i  thereof  provides :  “Hereafter  when  persons  in  this  State 
shall  desire  to  be  incorporated  with  the  powers  and  privileges  of  a 
corporate  body,  they  shall  file  a  petition  in  the  Chancery  Court  of  the 
county  in  which  the  largest  number  of  petitioners  reside,  setting  forth 
the  purpose  and  objects  of  the  corporation  prayed  for.”  Then,  after 
describing  the  publication  to  bq  made,  the  court  is  directed  to  proceed 
to  an  eAT  parte  hearing  of  the  petition,  and,  “it  appearing  to  the  court 
that  the  objects  of  the  corporation  prayed  for  are  not  in  conflict  with 
the  laws  of  the  land  nor  detrimental  to  public  interests  or  morals,  the 
court  shall  so  adjudicate  and  decree  .  .  .  and  shall  enumerate  such 

usual  powers  and  privileges  of  corporate  bodies  as  may  be  necessary 
to  carry  out  the  legitimate  objects  of  said  corporation.”  Section  9 
thereof  provides:  “That  the  powers  granted  to  Chancery  Courts  by 
this  Act  shall  extend  to  the  incorporation  of  institutions  of  learning, 
churches,  religious  and  charitable  institutions,  and  the  powers  and. 
privileges  of  such  corporations  shall  be  as  prescribed  in  Sections  1470, 
1471,  1472  and  1473  of  the  Code  of  Tennessee.” 


—24— 


Code,  Section  1470,  applies  to  corporations  with  stockholders. 

Section  1471  provides :  “If  the  members  are  not  interested  as  stock¬ 
holders,  each  member  is  entitled  to  vote,  at  all  elections,  one  vote,  and 
to  bear  an  equal  voice  in  all  the  deliberations  of  the  whole  body.  Such 
members  may  fix  the  number  of  trustees,  the  officers  of  the  associa¬ 
tion,  their  terms  of  service  and  compensation.’' 

Section  1472:  “Corporations  created  under  this  article  may  hold 
real  and  personal  property,  not  exceeding  in  value  $50,000,  may  receive 
property  by  gift,  will  or  devise,  holding  the  same  for  purposes  of  their 
incorporation,  with  all  the  lawful  conditions  imposed  by  the  donor,  and 
may  exercise  such  powers  as  are  incident  to  private  corporations.” 

Section  1473  provides  for  service  of  process  on  the  corporation  in 
case  of  suits,  etc. 

The  Code  of  1858,  from  which  these  sections  are  taken,  had  pro¬ 
vided  for  the  organization  of  corporations  of  various  kinds  by  pro¬ 
ceedings  quite  different  from  those  provided  by  the  Act  in  question. 
The  Constitution  of  1870  had  forbidden  the  granting  of  charters  by 
special  act,  and  required  that  all  charters  of  incorporations  should  be 
granted  by  general  laws.  In  pursuance  of  this  provision  the  Legisla¬ 
ture  of  1870-71  passed  the  Act  in  question  as  a  general  corporation  act, 
providing  for  the  organization  of  various  kinds  of  corporations.  We 
have  quoted  so  much  thereof  as  is  applicable  to  the  class  of  corporations 
to  which  this  educational  institution  belongs.  This  is  a  general  Act, 
covering  the  whole  subject,  and  therefore  superseded  the  Code  pro¬ 
visions,  except  so  far  as  they  were  adopted  and  reenacted  thereby. 

Terrell  vs.  State,  86  Tenn.,  523. 

Malone  vs.  Williams,  118  Tenn.,  445. 

It  changed  entirely  the  method  of  procedure  necessary  to  obtain  a 
charter  and  organize  a  corporation,  but  as  to  institutions  of  learning 
etc..  Section  9  of  the  Act  gave  them  the  same  powers  as  were  given 
to  like  corporations  organized  under  the  Code. 

Heck  vs.  McEwen,  12  Lea,  97. 

Caldwell  ex  parte,  3  Bax.,  98. 

Whether  that  Act  would  authorize  representative  incorporation,  that 
is  to  say,  the  incorporation  of  a  certain  body  or  class  of  individuals 
as  an  educational  institution  upon  the  application  of  a  few  acting  as  the 
representatives,  it  is  not  necessary  in  this  case  to  decide,  for  the  reason 
that  the  applicants  for  this  charter  had  not  been  authorized  to  repre¬ 
sent  for  that  purpose  anyone  other  than  themselves,  unless,  perchance, 
it  were  the  members  of  the  Memphis  convention,  by  whom  they  had 


25— 


been  named.  The  members  of  that  convention  formed  a  mere  tem¬ 
porary  body,  without  permanence  or  succession,  and  clearly  they  did 
not  contemplate  their  own  incorporation.  The  insistence  in  this  case 
is  not  to  this  effect,  but  that  they  represented  the  Annual  Conferences, 
whose  committees  constituted  that  convention.  We  cannot  agree  with 
this  contention  for  several  reasons.  The  conferences  had  not  author¬ 
ized  that  convention  to  bind  them,  and  the  convention  did  not  under¬ 
take  to  do  so.  The  conferences,  whether  incorporated  or  mere  volun¬ 
tary  associations,  were  not  competent  to  form  an  association  with  each 
other  for  the  purpose  of  incorporation  or,  without  express  statutory  au¬ 
thority,  to  act  as  members  of  a  corporation. 

I  Thomp.  Corp.,  2d  Ed.,  Sec.  176. 

I  Wilgus  Corp.,  56,  553. 

I  Clark  &  Marsh  Corp.,  p.  127. 

I  Meacham,  Sec.  130. 

See  also  Mallory  vs.  Oil  Works,  86  Tenn.,  598. 

Rhodes  vs.  Rhodes,  88  Tenn.,  637. 

Green  vs.  Allen,  5  Humph.,  158. 

The  Tennessee  Act  in  question  clearly  contemplates  the  incorpora¬ 
tion  of  natural  persons  and  not  corporations  or  voluntary  associations. 
These  annual  conferences,  whether  incorporated  or  not,  were  repre¬ 
sentative  bodies,  composed  of  delegates  from  the  several  churches  with¬ 
in  their  'bounds,  and  the  churches  were  composed  of  individual  mem¬ 
bers.  It  has  been  suggested  that,  if  the  conferences  could  not  act  as 
incorporators,  the  delegates  of  whom  they  were  composed  might  do 
so,  but  it  is  clear  that  they  had  no  such  intention,  or  that  the  individual 
members  of  the  several  churches  could  do  so.  It  is  equally  clear  that 
they  had  no  such  intention.  The  Memphis  convention  and  its  Board 
of  Trust  entertained  no  such  thought.  This  would  be  carrying  repre¬ 
sentative  incorporation  beyond  the  limit.  If  such  were  permissible,  a 
large  class  of  persons  who  had  never  even  dreamed  of  the  subject  might 
wake  up  and  find  themselves  incorporated.  The  Act  provides  only  for 
persons  so  desiring  to  be  incorporated. 

The  subsequent  ratification  of  the  action  of  the  convention  and  the 
Board  of  Trust  could  not  change  the  result,  for  the  action  taken  did  not 
purport  to  incorporate  any  but  the  petitioners;  and  the  by-law  adopted 
in  furtherance  of  the  Memphis  resolutions  proclaimed  that  ‘'the  charter 
leaves  the  perpetuity  of  the  Board  in  its  own  power,'*  and  requested 
the  several  conferences  cooperating  to  nominate  four  members  for 
election,  etc.  This  was  certified  along  with  the  charter  and  the  Mem- 


—26— 


phis  resolutions  to  the  conferences ;  and  when  they  ratified,  they  could 
not  possibly  have  understood  that  they  thereby  became  incorporators, 
and  such  ratification  could  not,  in  any  event,  change  the  legal  effect 
of  the  charter  already  granted. 

Moreover,  the  petition  for  the  charter  was  filed  by  the  applicants 
as  individuals,  and  not  as  representatives  of  anyone,  and  the  publica¬ 
tion  thereon  was  made  accordingly.  The  fact  that  they  are  described 
in  the  decree  or  charter  as  representatives  of  certain  Annual  Confer¬ 
ences  does  not  in  this  respect  change  the  result.  While  the  court,  in 
pronouncing  this  decree,  was  acting  not  judicially,  but  ministerially 
(Chadwell  ex  parte  3  Bax.,  108),  yet  the  proceeding  was  according  to 
judicial  forms,  and  the  decree  or  charter  cannot  depart  in  substance 
from  the  petition.  The  petition  is  the  basis  and  measure  of  the  thing 
to  be  granted.  The  court  might  grant  less,  but  not  more,  than  was 
sought  by  the  petition. 

Wilson  vs.  Schaefer,  107  Tenn.,  300. 

Gilbreath  vs.  Gilliland,  95  Tenn.,  383. 

Therefore,  we  are  of  opinion  that,  under  this  Act  and  these  proceed¬ 
ings,  the  person's  applying  for  the  charter  became  the  incorporators,  the 
body  politic  or  corporate,  in  other  words,  the  members  of  the  corpora¬ 
tion;  and  had  the  right  of  perpetual  succession.  Neither"  the  Act  nor 
the  charter  provides  how  their  successors  shall  be  chosen;  and,  in  the 
absence  of  such  provision,  in  the  case  of  a  corporation  aggregate,  that 
right,  by  necessary  implication,  would  be  vested  in  the  persons  so  in¬ 
corporated. 

I  Blackst.  Com.,  475-576. 

Taylor  on  Corp.,  Sec.  14. 

Kyd  on  Corp.,  69. 

Ang.  &  Ames  on  Corp.,  70,  89. 

Fowler  on  Charitable  Uses,  138,  Note  3. 

Such,  indeed,  for  a  period  of  thirty-five  years  or  more  after  the  or¬ 
ganization  of  this  corporation  was  the  uniform  construction  of  its  char¬ 
ter  by  all  parties  concerned. 

It  is  to  be  observed  that  many  members  of  the  Board  of  Trust  from 
its  inception  have  been  eminent  lawyers,  not  only  of  Tennessee,  but 
also  of  other  States. 

The  practical  interpretation  of  a  contract  by  the  parties  thereto 
is  entitled  to  great,  if  not  controlling,  influence. 

Chicago  vs.  Sheldon,  9  Wall.,  54. 


27— 


THE  MEMPHIS  RESOLUTIONS  WERE  AND  ARE  A  VALID 

PART  OF  THE  CHARTER 

There  is  great  contention  in  this  case  as  to  the  effect  of  the  Mem¬ 
phis  resolutions,  which  are  embodied  in  this  charter.  Complainants 
insist  that  they  constitute  the  essence,  or  soul,  of  the  charter,  and  the 
defendants  that  they  are  mere  surplusage,  and  of  no  effect  whatever. 
It  seems  that,  throughout  the  history  of  this  institution,  much  doubt  on 
this  question  has  arisen  in  the  minds  of  the  Board  of  Trust  and  other 
parties  concerned,  and  to  settle  that  doubt  more  than  one  effort  was 
made  to  eliminate  them  from  the  charter,  and  it  is  now  contended  by 
the  defendants  that  this  was  in  fact  done  by  the  amended  charter  of 
1873  .  We  do  not  regard  it  as  very  material  whether  they  became  tech¬ 
nically  a  part  of  the  charter  or  not.  At  any  rate,  they  were  not  im¬ 
properly  incorporated  therein. 

The  Act  of  1871,  Chapter  54,  requires,  among  other  things,  that 
the  petition  shall  set  forth  the  purposes  and  objects  of  the  corporation 
prayed  for,  to  the  end  that  the  court  may  adjudge  and  decree  that  the 
objects  of  the  corporation  are  not  in  conflict  with  the  laws  of  the  land, 
etc.  The  objects  of  this  corporation,  as  stated  in  the  petition,  were 
“for  the  purpose  of  soliciting  subscriptions,  (and)  donations,  and  for 
the  erection  and  maintenance  of  an  institution  of  learning  of  the  high¬ 
est  order,  maintaining  all  the  schools  belonging  to  a  university  of  that 
character,  together  with  the  rights,  powers  and  privileges  which  by  law 
may  belong  to  literary  institutions  chartered  by  the  laws  of  the  State.’’ 
It  was  altogether  proper  for  the  court,  under  this  petition,  to  inquire 
into,  find  and  insert  into  the  decree  the  objects  and  purposes  of  this 
corporation,  not  merely  in  the  general  terms  of  the  petition,  but  the 
more  amplified  and  particular  form  as  stated  in  the  Memphis  resolu¬ 
tions,  which  constitute  the  plan  and  specifications  upon  which  this  insti¬ 
tution  was  to  be^built,  and  then,  as  directed  by  the  statute,  “enumerate 
such  usual  powers  and  privileges  of  corporate  bodies  as  may  be  neces¬ 
sary  to  carry  out  the  legitimate  objects  of  said  corporation” ;  and  so 
the  court  did  in  this  charter. 

Mr.  Thompson,  in  his  work  on  Corporations,  says :  “The  statute 
of  perhaps  every  State  in  the  country,  authorizing  the  organization  of 
corporations,  requires  the  articles  to  state,  definitely  and  clearly,  the 
objects  and  purposes  of  the  proposed  corporation.  This  is  regarded  in 
some  respects  as  the  most  important  requirement,  for  by  this  the  powers 
of  the  corporation  are  to  'be  determined,  and  its  acts,  to  be  legal  and 


—28— 


binding,  except  as  otherwise  hereinafter  shown,  must  be  measured  by 
the  objects  and  purposes  stated.” 

I  Thomp.  Corp.,  2d  Ed.,  Sec.  191. 

See  also  Idem,  Sec.  40. 

We  are  of  opinion  that  the  Memphis  resolutions  were  not  eliminated 
from  the  charter  by  the  amendment  thereto  of  1873. 

The  petition  asked,  not  for  a  new  charter,  but  for  certain  specific 
amendments  to  the  existing  charter.  The  decree  shows  that  only  two 
of  these  were  allowed,  to  wdt:  the  change  of  name,  and  the  power  to 
increase  or  diminish  the  number  of  members  of  the  Board.  Nothing  i§ 
said  of  the  others.  However,  the  decree  passes  to  Vanderbilt  Univer¬ 
sity  all  rights,  powers,  privileges,  immunities  and  franchises,  “which 
heretofore  by  law%  under  the  decree  of  this  court,  were  conferred  upon 
said  corporation”  under  its  former  name  and  style,  and  so  seems  to  con¬ 
firm,  rather  than  eliminate,  the  provisions  of  the  original  charter  in  re¬ 
gard  to  the  Memphis  resolutions.  But  whether  they  had  ever  been 
incorporated  in  the  charter  or  not,  or  whether  they  had  been  eliminated 
therefrom  by  this  decree  of  1873  or  not,  we  think  they  would  still  con¬ 
stitute,  in  so  far  as  their  provisions  are  legal,  the  underlying  plan  of 
this  institution,  and  their  character  and  effect  would,  in  either  event, 
be  the  same,  to  wit:  its  so-called  “articles  of  foundation.” 

COMMODORE  VANDERBILT,  AND  NOT  THE  CHURCH, 

WAS  THE  FOUNDER 

This  leads  up  to  the  much  discussed  question  as  to  who  is  the 
founder  of  this  institution. 

The  Memphis  convention,  composed  of  delegates  from  the  several 
Annual  Conferences,  without  power,  however,  to  bind  them  by  its 
action,  was  the  original  designer — architect,  as  it  were — of  this  educa¬ 
tional  enterprise.  It  devised  and  formulated  the  general  plans  and 
specifications  or  so-called  “articles  of  foundation,”  upon  which  it 
w^as  to  be  built.  It  named  a  Board  of  Trust,  w’ho  should  procure  an 
act  of  incorporation  in  order  to  give  it  permanence  and  carry  out  the 
founders  intention  with  more  convenience. 

2  Perry  on  Trusts,  Sec.  742. 

Dartmouth  College  case,  4  Wheat,  574. 

Attorney-General  vs.  Pierce,  2d  Atk.,  87. 

Tudor  on  Charities,  Sec.  63. 

Nelson  vs.  Cushing,  2d  Cushing,  527. 

State  vs.  Toledo,  23  Ohio  Cir.  Ct.,  327. 


—29— 


It  also  authorized  and  enjoined  on  this  Board  of  Trust,  when  so 
incorporated,  to  seek  and,  if  possible,  find  a  founder  or  builder  who 
would  supply  the  necessary  funds  to  accomplish  its  objects.  It  had 
prescribed  a  million  dollars  as  the  amount  desired,  and  a  half  million 
dollars  as  the  minimum  amount  upon  which  it  could  be  founded  or 
begun. 

In  pursuance  of  this  authority  and  injunction,  the  Board  of  Trust 
at  first  sought  this  founder  and  funds  necessary  to  its  project  among 
the  cooperating  Annual  Conferences  and  the  mem.bers  of  the  Metho- 
dist  Episcopal  Church,  South.  In  this  efifort  they  succeeded  in  raising 
but  a  fraction  of  the  minimum  amount  required,  and  that  fraction 
rested  only  in  promises.  Possibly  those  promises  or  subscriptions 
were  not  binding  or,  in  law,  collectible,  until  the  minimum  required 
had  been  procured.  They  had  about  despaired  of  success  from  this 
source  when  Mr.  Vanderbilt  made  his  first  donation  of  not  less  than 
half  a  million  dollars,  the  full  minimum  required;  and  directly  after¬ 
wards  doubled  the  amount,  thus  making  the  full  endowment  called 
for  by  said  Memphis  resolutions. 

With  these  funds  so  donated  by  Mr.  Vanderbilt,  and  a  compara¬ 
tively  small  amount  contributed  by  citizens  of  Nashville,  in  order  to 
secure  a  particular  location  of  the  institution,  the  Board  of  Trust  pro¬ 
vided  a  campus,  buildings,  outfit,  and  endowment  for  the  University. 
Such  amounts  as  they  realized  from  antecedent  subscriptions  were 
subsequently  devoted  to  the  so-called  ‘'sustentation  fund,"  foi  defray¬ 
ing  personal  expenses  of  students  attending  the  theological  department 
of  the  University. 

Then,  so  far  as  money  was  concerned,  it  was  Mr.  Vanderbilt,  and 
not  the  church,  who  breathed  life  into  this  corporate  body,  if  not  dead, 
at  least,  until  then,  inert  and  powerless.  Hence,  on  this  issue  we  find 
that  Mr.  Vanderbilt,  and  not  the  Annual  Conferences  nor  the  church, 
was  the  founder  and  original  patron  of  this  institution. 

THE  RELATION  OF  THE  CHURCH  TO  THE  UNIVERSITY  IS 
ONE  OF  COOPERATION  AND  NOT  ONE  OF  OWNERSHIP 

Nevertheless,  in  so  far  as  their  provisions  are  valid  and  legal,  he 
founded  the  institution  upon  the  plans  and  specifications  or  so-called 
“articles  of  foundation"  contained  in  the  Memphis  resolutions,  except 
so  far  as  he  saw  fit  to  append  other  legal  conditions  to  his  gifts.  He 
did  impose  on  these  gifts  some  conditions  which  modified  to  some 
extent  these  Memphis  resolutions,  the  chief  of  which  was  that  Bishop 


—30— 


McTyeire,  through  whom  the  gift  was  communicated  to  the  corpora¬ 
tion,  should  be  made  president  for  life,  at  a  fixed  salary  and  the  use 
of  a  dwelling  house  free  of  rent ;  that  as  such  president  he,  and  possi¬ 
bly  his  successors  in  office,  should  have  a  veto  power  over  the  acts 
of  the  Board  of  Trust,  the  legality  and  validity  of  which  is  open  to 
very  serious  question ;  and  that  the  University  should  be  located  in  or 
near  Nashville.  It  will  thus  be  seen  that  they  did  not  supplant  the 
main  body  of  the  Memphis  resolutions,  but  were  engrafted  thereon. 
Whether  the  seventh  and  ninth  of  these  resolutions  do  not  attempt  an 
unwarrantable  and  illegal  interference  with  the  normal  and  legitimate 
powers  of  a  Tennessee  corporation  and  its  governing  body  of  directors 
or  trustees  presents  a  very  serious  question,  but  is  not  in  issue  here, 
and  for  that  reason  not  discussed  and  decided. 

The  petitioners  for  this  charter  were  incorporated  as  a  Board  of 
Trust  or  Trustees.  Trustees  for  what  purposes  and  trust?  Originally 
to  administer  this  charity,  as  planned  by  the  Memphis  convention,  or, 
in  the  language  of  the  resolutions,  for  “the  carrying  out  of  this  whole 
scheme  .  .  .  with  power  to  solicit  and  invest  funds  .  .  .  and 
to  do  whatever  is  necessary  for  the  execution  of  this  scheme.’’  This 
trust  was  recognized  by  incorporating  in  the  charter  these  resolutions 
in  full ;  also  by  describing  therein  the  petitioners  or  Board  of  Trust 
as  representatives  of  the  several  Annual  Conferences  from  which 
they  came.  The  law,  as  well  as  their  charter,  imposed  upon  them  the 
further  trust  of  holding  such  real  estate  and  personal  property  as  they 
may  receive  by  contract,  gift,  will,  or  devise  “for  the  purposes  of  said 
corporation,  with  all  the  lawful  conditions  imposed  by  the  donor.” 

A  charitable  corporation  is  in  itself  a  trustee,  and  its  charter  con¬ 
stitutes  a  declaration  of  trust. 

2  Morawetz  on  Corp.,  Sec.  1046,  cited  in  Church  vs.  Hinton,  92 
Tenn.,  188. 

In  Perry  on  Trusts,  cited  above,  it  is  said:  “The  trustees  of  a 
charity  frequently  procure  an  act  of  incorporation,  in  order  to  carry 
out  the  intention  of  their  donor  with  more  convenience.” 

In  Nelson  vs.  Cushing,  supra,  where  trustees,  appointed  by  will 
for  the  establishment  of  a  free  school,  had  become  incorporated,  the 
court  said:  “This  act,  in  our  judgment,  does  not  vai*}^  the  powers  or 
the  duties  of  the  trustees,  or  change  the  character  of  the  school  placed 
under  their  management.  It  enables  them  to  act  in  a  corporate  name 
and  to  have  a  corporate  seal,  and  it  affords  them  the  facility  of  tak¬ 
ing  conveyances,  obligations  and  securities  in  their  corporate  name. 


—31— 


and  avoids  the  necessity  of  changing  such  securities  upon  a  change 
of  individual  members  composing  the  board/^ 

In  State  vs.  Toledo,  supra,  a  corporation  had  been  formed  for  the 
purpose  of  carrying  out  a  trust  founded’  by  one  Scott,  and  the  court 
held  that  “a  person  establishing  an  institution  of  learning  of  such  a 
character  and  for  such  purposes  as  he  deems  proper,  and  such  as  he 
deems  useful  and  beneficial  to  his  fellow  men,  has  a  right  to  place 
such  restrictions,  or  conditions,  upon  the  trust  which  he  creates  as  he 
sees  fit;  and  the  act  of  incorporation,  while  made  under  general  laws 
for  the  purposes  of  carrying  out  the  trust,  is  subordinate  and  sub¬ 
sidiary  to  such  trust.  The  purposes  and  objects  of  the  donation  must 
govern  the  institution,  unless  by  some  act  of  those  who  ha'\’^e  power 
over  the  fund  some  change  is  made.  The  legislature  has  no  inde¬ 
pendent  power  to  change,  or  alter,  the  trust.” 

This  brings  us  to  the  consideration  of  the  eighth  of  the  Memphis 
resolutions.  We  find  in  it  nothing  that  contravenes  the  express  pro¬ 
visions  or  policy  of  the  law.  It  is  in  furtherance  of  the  general  ob¬ 
jects  and  purposes  of  this  corporation  as  expressed  in  its  charter  and 
the  petition  therefor. 

Then  what  was  the  effect  upon  the  constitution  of  the  Board  of 
Trust  of  this  eighth  of  the  Memphis  resolutions:  ^‘That  provision  be 
made  in  the  charter  for  giving  a  fair  representation  in  the  manage¬ 
ment  of  the  University  to  any  Annual  Conference  hereafter  co¬ 
operating  with  us?”  With  us?  With  whom?  Not  the  Annual  Con¬ 
ferences,  from  whom  the  delegates  came,  for  they  were  not  bound  by 
the  convention’s  action,  and  might  not,  any  or  all,  cooperate  in  this 
enterprise.  Therefore  “with  us”  means  primarily  the  convention  which 
was  speaking,  and  ultimately  the  Board  of  Trust — the  corporation — 
the  University  itself,  the  sole  survivor  and  heir  of  that  convention. 
What  “Annual  Conferences,  hereafter  cooperating  with  us?”  Not 
merely  those  which  were  not  then  represented  in  the  convention,  but 
any  Annual  Conference,  whether  there  represented  or  not,  which  rati¬ 
fied  the  action  of  the  convention,  and  thereafter  would  cooperate  with 
the  Board  of  Trust  in  “the  carrying  out  of  this  whole  scheme.”  This, 
then,  calls  for  giving  a  “fair  representation  in  the  management  of  the 
University  to  any  and  all  conferences  hereafter  cooperating,”  thereby 
recognizing  that  none  were  at  the  present  time  bound  to  do  so. 

This  scheme  was  not  conditioned  upon  the  ratification  of  the  con¬ 
ferences.  The  very  first  resolution  was  to  the  effect  “that  measures 
be  adopted  looking  to  the  establishment,  as  speedily  as  practicable,  of 


—32 


an  institution  of  learning/'  etc.,  and  the  sixth  provided  “that  the  carry¬ 
ing  out  of  this  whole  scheme  is  hereby  committed  to  the  following 
persons” — to  wit,  the  Board  of  Trust  named — who  shall  take  imme¬ 
diate  steps  to  carry  it  out;  and  this  eighth  resolution  does  not  con¬ 
template  ownership  of  the  institution  by  the  conferences,  but  merely 
cooperation  by  them — “with  us,”  the  Board  of  Trust,  the  University 
itself ;  and,  in  return  for  such  cooperation,  each  conference  should 
have  a  fair  representation  in  the  management  of  the  University — that 
is  to  say,  on  the  Board  of  Trust.  The  second  resolution,  “that  the 
institution  shall  be  called  the  Central  University  of  the  Methodist 
Episcopal  Church,  South,”  does  not  necessarily  mean  ownership  of 
the  University  by  the  church.  If  it  stood  alone  in  might  imply  as 
much,  but,  in  connection  with  the  other  resolutions,  it  is  intended  mere¬ 
ly  to  define  the  character  of  the  institution,  and  invite  the  affiliation 
and  influence  of  the  church.  Such,  too,  was  the  purpose  of  the  fifth 
resolution,  as  to  its  location  by  the  Bishops,  and  the  ninth,  as  to  the 
relation  of  the  Bishops  to  the  University.  The  effect  of  the  latter 
resolution  will  be  hereinafter  more  fully  noticed,  in  connection  with 
another  matter. 

The  charter  expressly  provided  that  the  Board  of  Trust  “shall 
make  all  by-laws  necessary  and  proper  to  carry  out  said  reso¬ 
lutions.”  The  Board  properly  construed  this  “fair  representation”  to 
mean  equal  representation;  and  originally  provided  for  it  by  By-law 
No.  2,  allowing  to  each  conference  four  members  on  the  Board.  The 
number  was  subsequently  reduced,  first  to  two,  and  finally  to  one, 
from  each.  Originally  they  provided  that  the  conferences  should  name 
their  representatives,  and  the  Board  would  elect.  Then  for  very  good 
reasons,  wisely  suggested  by  Bishop  McTyeire,  they  reversed  this  rule, 
and  provided  that  the  Board  should  elect,  subject  to  confirmation  by 
the  conferences.  They  excluded  members  from  conferences  repre¬ 
sented  in  the  Memphis  convention  and  the  charter  but  failing  after¬ 
wards  to  ratify  and  cooperate.  One  such  conference  subsequently 
approved  and  named  representatives,  who  were  then  admitted  to  mem¬ 
bership.  They  also  admitted  members  from  one  cooperating  confer¬ 
ence  not  represented  in  the  convention  and  charter.  They  reduced 
the  terms  of  members  from  life  to  eight  years.  At  first  the  whole  Board 
was  made  up  of  representatives  of  the  several  conferences.  Then, 
as  these  representative  members  were  reduced  in  number,  others  were 
admitted,  who  did  not  represent,  and  were  not  named  or  confirmed 
by  the  conferences.  All  of  these  changes  were  originated  and  made 


-~33— 


by  the  Board ;  but  most  of  them — at  least  the  more  radical  ones,  affect¬ 
ing  the  representation  of  the  conferences — were  submitted  to  and  ap¬ 
proved  by  the  conferences.  This  arrangement,  from  the  first,  was  re¬ 
ferred  to  by  the  conferences  as  a  contract,  and  usually  by  the  Board 
as  a  by-law  relation  between  the  parties.  We  think  both  were  right, 
and  that  it  amounted,  in  fact,  to  a  trust  relation  between  them. 

The  relation,  both  by  the  Memphis  resolutions  and  the  practical  in¬ 
terpretation  thereof  by  the  parties,  was  not  that  of  ownership  by  the  con¬ 
ferences,  but  of  cooperation  with  the  University  and  fair  representa¬ 
tion  in  its  management.  What  this  fair  representation  should  be,  con¬ 
sidering  the  best  interests  of  the  University,  was,  from  time  to  time, 
settled  and  fixed  by  mutual  agreement.  Neither  party  was  at  liberty 
to  violate  these  agreements. 

Finally,  in  1898,  this  relation  between  the  Annual  Conferences 
and  the  University  was  by  mutual  consent  terminated,  and  the  General 
Conference  of  the  whole  church  was  substituted  to  the  rights  and 
privileges  theretofore  enjoyed  by  the  Annual  Conferences.  It  was 
agreed  between  the  General  Conference  and  the  Board  of  Trust 
that  the  Board  should  elect,  and  the  General  Conference  con¬ 
firm,  all  members  of  the  Board.  This  arrangement  was  entirely 
consonant  with  the  original  plans  and  purposes  of  the  corporation, 
and  with  the  Memphis  resolutions.  It  was  merely  an  acknowledgpnent 
of  the  underlying  principle  that  the  church  should  cooperate  with  the 
University  and  have  fair  representation  in  its  management.  In  this 
way  this  relation  was  to  be  extended  from  a  part  of  the  Annual  Con¬ 
ferences  theretofore  cooperating  to  the  General  Conference,  composed 
of  delegates  from  and  having  jurisdiction  over  all  Annual  Conferences 
and  the  church  at  large.  The  by-laws  of  the  University  and  the  prac¬ 
tice  of  the  parties  were  conformed  to  that  agreement  until  1910  when 
this  controversy  arose.  Then  both  parties — the  General  Conference 
first  and  the  Board  afterwards — undertook  to  repudiate  that  arrange¬ 
ment  without  consent  of  the  other,  and  each  asserted  the  right  to  elect 
members  independently  of  the  other.  Unless  controlled  by  Act  of  1895, 
Ch.  6,  hereafter  to  be  noticed,  that  agreement  could  no  more  be  ig¬ 
nored  or  violated  by  the  parties  thereto  than  those  formerly  existing 
between  the  Annual  Conferences  and  the  University. 

The  power  of  this  corporation  to  enter  into  such  agreements  and 
pass  such  by-laws  appears  to  be  expressly  given  by  the  charter;  but, 
if  not,  it  is  so  consistent  with  the  charter  and  its  declared  purposes  and 
objects  that  it  may  be  well  implied.  3  Thomp.  on  Corp.,  2d  Ed.,  Secs. 
2108-2112.  In  Sec.  2112  it  is  said:  ^‘When  an  express  power  is 


granted  to  do  a  particular  act  or  to  engage  in  a  stated  business,  this 
carries  with  it  by  implication  the  right  to  do  every  act  which  may  be 
found  necessary  to  give  effect  to  the  power  expressly  granted.  On  this 
principle  every  corporation,  at  least  in  the  absence  of  restrictive  lan¬ 
guage,  possesses  the  powers  found  necessary,  not  only  to  its  existence 
and  self-preservation,  but,  as  already  said,  to  powers  expressly  granted, 
or  to  effectuate  the  purposes  and  objects  of  the  incorporation.” 

The  by-laws  of  a  corporation  must  be  consistent  with  the  spirit 
and  terms  of  the  corporate  charter,  and,  when  such  a  by-law  is  adopted, 
it  becomes,  while  in  force,  as  much  a  part  of  the  law  of  the  corpora¬ 
tion  as  though  its  provisions  had  been  a  part  of  the  charter.  When  a 
by-law  enters  into  a  compact  between  the  corporation  and  its  share¬ 
holders,  it  is  in  the  nature  of  a  contract  between  them,  and  is  not 
revocable  to  the  prejudice  of  the  shareholder.  So,  too,  a  by-law  of  a 
nonstockholding  corporation,  which  enters  into,  or  constitutes,  a  con¬ 
tract  or  declaration  of  trust  between  that  corporation  and  its  bene¬ 
ficiaries,  cannot  be  repealed  so  as  to  deprive  the  parties  of  their  rights 
under  such  contract  or  declaration  of  trust. 

See  5  Am.  &  Eng.  Ency.  Law,  2d  Ed.,  88,  91,  95 ;  Kent  vs.  Quick¬ 
silver  Mining  Co.,  78  N.  Y.,  179;  i  Thomp.  Corp.,  Sec.  1017;  Mat¬ 
thews  vs.  Associated  Press,  136  N.  Y.,  333;  i  Cook  Corp.,  Sec.  4-a 
and  notes. 

THE  BISHOPS  DO  NOT  POSSESS  VISITORIAL  POWER 

We  will  next  inquire  into  the  effect  and  operation  of  the  ninth 
of  the  Memphis  resolutions:  “That  the  Bishops  of  the  Methodist 
Episcopal  Church,  South,  be,  and  are  hereby,  requested  to  act  as  a 
Board  of  Supervision  of  the  University,  or  any  of  its  departments, 
and,  jointly  with  the  Board  of  Trust,  to  elect  officers  and  professors, 
and  prescribe  the  course  of  study  and  plan  of  government.” 

It  is  claimed  by  complainants  that  this  vested  in  the  College  of 
Bishops  the  common  law  right  of  visitors  over  this  corporation.  At 
common  law,  this  visitorial  power  was  a  property  right,  belonging  to 
the  first  donor  and  founder  of  a  charity,  and  arose  by  implication  from 
the  gift,  or  it  might  be  vested  by  him  in  his  appointee.  There  is  no 
claim  in  this  case  that  the  Bishops  were  donors  to,  and  founders  of, 
this  charity,  and  hence  no  such  right  can  arise  on  that  ground ;  but 
it  is  said  that  they  were  appointed  by  the  founder  to  be  the  visitors. 
As  we  have  already  said,  the  founder  of  this  charity,  by  gift  of  its 
endowment,  was  C.  Vanderbilt,  and  he  did  not  appoint  the  College  of 


—36— 


Bishops  visitors.  If  he  appointed  any  visitor,  it  was  a  limited  appoint¬ 
ment  of  Bishop  McTyeire  (and  possibly  his  successors  in  office),  who 
was,  as  a  condition  of  his  gift,  made  president  of  the  Board  for  life, 
with  veto  power  over  its  action.  Whether  this  was  a  lawful  condition 
or  an  unwarranted  interference  with  the  power  and  authority  of  the 
directors  of  a  Tennessee  corporation,  it  is  not  necessary  in  this  case 
to  inquire  or  decide.  The  condition  was  made,  and  complied  with, 
and  by  the  death  of  Bishop  McTyeire  has  been  treated  as  terminated. 
Whether  this  is  so  is  not  an  issue  here. 

But  it  is  insisted  that,  by  providing  the  plan  or  ‘‘articles  of  foun¬ 
dation,’’  the  Memphis  convention,  or  the  Methodist  church,  founded 
this  institution,  and  by  this  ninth  resolution  appointed  the  Bishops 
visitors,  and  it  may  be  asserted  that  Mr.  Vanderbilt,  as  founder, 
adopted  this  appointment,  if  such  it  was.  Let  us  inquire  into  the  mean¬ 
ing  and  effect  of  this  resolution.  As  to  what,  if  any,  relation  other  than 
that  of  visitors  is  created  between  the  College  of  Bishops  and  the 
corporation,  it  is  not  necessary  to  decide,  as  no  issue  of  that  kind  is 
made  in  this  case.  Hence  we  limit  the  inquiry  to  the  question  as  to 
whether  it  vested  in  the  College  of  Bishops  this  common  law  visitorial 
power. 

By  Act  of  1857-8,  Chapter  32,  certain  persons  named  were  granted 
a  charter  and  incorporated  under  the  name  and  style  of  “The  Board 
of  Trustees  of  Central  University  of  the  General  Conference  of  the 
Methodist  Episcopal  Church,  South.”  Several  of  those  named  therein 
as  incorporators  were  also  members  of  the  Memphis  convention ;  and 
it  is  asserted  by  both  parties  to  this  case,  and  seems  altogether  prob¬ 
able,  that  the  committee  of  that  convention  who  drafted  its  resolutions 
had  before  it  as  a  precedent  this  Act  of  1857-8.  Section  2  thereof  pro¬ 
vides:  “That  the  General  Conference  of  the  Methodist  Episcopal 
Church,  South,  shall  have  supervision  over  the  above  incorporated 
Board  of  Trustees;  they  shall  have  and  possess  power  of  visitation, 
and  also  power  to  fill  vacancies  in  the  Board  by  death,  resignation, 
or  removal.” 

A  comparison  thereof  with  this  resolution  is  significant,  in  that 
both  provide  for  “supervision”  of  the  corporation,  while  the  former 
confers  the  additional  power  of  “visitation”  and  “to  fill  vacancies  in 
the  Board,”  and  the  latter  omits  both. 

The  Act  of  1857-8  thus  makes  a  distinction  between  the  power 
of  “supervision”  and  of  “visitation.” 


—36— 


That  the  Memphis  resolutions  adopted  the  one  and  rejected  the 
other  can  mean  nothing  less  than  an  intention  not  to  give  the  power  of 
'‘visitation/^  Moreover,  we  think  the  power  of  “supervision*’  is  not 
equivalent  to  and  does  not  necessarily  include  that  of  “visitation." 
The  latter  was  probably  omitted  for  the  very  good  reason  that  it  was 
not  pertinent  to  the  corporation  contemplated  by  the  Memphis  resolu¬ 
tion.  At  common  law  the  right  of  visitation  vests  only  where  the 
persons  interested  in  the  charity  were  themselves  incorporated  and 
not  where  disinterested  trustees  were  appointed  and  incorporated  to 
administer  the  trust  for  the  beneficiaries. 

In  the  leading  case  on  this  subject  it  is  said  by  Lx>rd  Holt :  “For  it 
is  fit  the  members  that  are  endowed  and  that  have  the  charity  bestowed 
upon  them  should  not  be  left  to  themselves  (for  divisions  and  contests 
will  arise  amongst  them  about  the  dividend  of  the  charity),  but  pursue 
the  intent  and  design  of  him  that  bestowed  it  upon  them. 

“Now,  indeed,  where  the  poor,  or  those  that  receive  the  charity, 
are  not  incorporated,  but  there  are  certain  trustees  who  dispose  of  the 
charity,  according  to  the  case  in  lo  Coke,  there  is  no  visitor;  because 
the  interest  of  the  revenue  is  not  vested  in  the  poor  that  have  the 
benefit  of  the  charity,  but  they  are  subject  to  the  orders  and  direction 
of  the  trustees.  But  where  they,  who  are  to  enjoy  the  benefit  of  the 
charity,  are  incorporated,  then,  to  prevent  all  perverting  of  the  charity, 
or  to  compose  differences  that  may  happen  among  them,  there  is  by 
law  a  visitorial  power." 

Phillips  vs.  Bury,  2  Term,  R.,  352. 

In  Green  vs.  Rutherford,  i  Vesey  Sen.,  471,  Lord  Hardwicke  said: 
“If  the  charity  is  not  vested  in  the  persons  who  are  to  partake,  but  in 
the  trustees  for  their  benefit,  no  visitor  can  arise  by  implication." 

A  like  rule  is  recog^nized  in  the  Dartmouth  College  case,  4  Wheat, 
563, 565-6, 645, 675-6. 

Allen  vs.  McKean,  i  Sumn.,  276,  Fed.  Cas.,  229. 

Sanderson  vs.  White,  18  Pick.  (Mass.),  328. 

In  2  Kent’s  Commentaries  (13  ed.),  300,  it  is  said:  “Where  gov¬ 
ernors  or  trustees  are  appointed  by  a  charter,  acording  to  the  will 
of  the  founder,  to  manage  a  charity  (as  is  usually  the  case  in  colleges 
and  hospitals),  the  visitorial  power  is  deemed  to  belong  to  the  trus¬ 
tees  in  their  corporate  capacity." 

There  is  yet  another  reason  why  we  think  the  visitorial  power  did 
not  vest  in  the  College  of  Bishops.  This  ninth  resolution  did  not 
appoint  the  Bishops  to  anything,  but  merely  requested  them  to  act 


as  a  Board  of  Supervision,  etc.  Soon  after  the  convention  adjourned 
the  Board  of  Trust  communicated  this  resolution,  tog’ether  with  the 
fifth  in  regard  to  locating  the  University,  to  the  College  of  Bishops, 
then  in  session,  “with  the  view  of  obtaining  an  acceptance  of  the  fore¬ 
going  official  relation  to  the  University.’^  The  Bishops  first  con¬ 
sidered  a  motion  to  decline  the  request  outright,  but  on  second  thought 
resolved :  First,  that  they  would  locate  the  institution  when  the  five 
hundred  thousand  dollars  shall  be  pledged  for  the  enterprise;  second, 
“that  by  this  act  we  are  not  to  be  understood  as  implying  that  the  said 
institution  is  to  be  considered  connectional,  to  the  damage  of  existing 
colleges  and  universities.  We  can  take  no  official  relation  to  the  Cen¬ 
tral  University  that  will  discriminate  between  it  and  any  and  every  other 
institution  of  the  church.  Nevertheless,  we  feel  free  to  give  our  de¬ 
cided  approval  to  the  combination  of  the  several  Annual  Conferences 
represented  in  the  convention  in  Memphis,  or  so  many  of  them  as 
may  agree  together,  acting  through  their  respective  bodies,  in  get¬ 
ting  up  an  institution  of  the  highest  grade;”  and  third,  withholding 
any  opinion  upon  the  subject  of  a  theological  department,  about  which 
there  was  grave  controversy  among  the  churchmen.  It  does  not  appear 
that  the  Bishops  had  any  official  relation  to  any  other  educational  in¬ 
stitution  of  the  church,  so  that  their  acceptance,  in  this  case,  would 
apparently  operate  as  a  discrimination  in  its  favor.  The  Board  (as 
do  we  also),  construed  this  answer  of  the  Bishops  as  a  declination  of 
all  official  relations  with  the  University  contemplated  by  that  ninth 
resolution.  This  is  manifest  from  their  reference  to  the  Bishops’  con¬ 
ditional  promise  to  locate  the  University,  and  their  significant  silence 
as  to  what  the  Bishops  say  about  assuming  no  official  relations  to  the 
institution. 

After  Mr.  Vanderbilt  had  endowed  the  University,  and  the  Board 
by  means  of  his  gifts  had  established  it,  the  Bishops  seemed  to  be 
ready  and  willing  to  adopt  the  enterprise.  All  parties  seemed  to  be 
in  doubt  about  what  relation  they  bore  to  the  institution.  They  as¬ 
sumed  and  exercised  very  uncertain  and  fitful  rights  and  privileges. 
After  a  time  the  Board  resolved  to  admit  them  as  members  ex  officio, 
and  later  rescinded  that  action  and  elected  five  of  their  number  td 
active  membership.  Not  until  after  the  so-called  Vanderbilt  Com¬ 
mission  had  reported  that  they  had  no  right  to  membership  in  the 
Board,  but  that  they  held  the  right  of  visitation,  were  they  heard  to 
claim  such  a  right,  or  did  they  attempt  to  exercise  it;  and  this  was 
nearly  forty  years  after  the  charter  was  granted  to  the  University, 


—38—  • 


and  after  they  had,  in  the  outset,  declined  all  official  relations  to  the 
corporation.  If  there  ever  had  been  any  merit  in  the  claim  we  think 
they  had  long  since  abandoned  it.  and  were  then  estopped  to  assert  it. 

Whether  this  resolution  invests  them  with  legal  power  of  any  kind 
we  very  much  doubt,  but,  as  hereinbeforre  stated,  the  alleged  visitorial 
power  is  all  that  is  here  in  issue,  and  for  that  reason  we  limit  our  de¬ 
cision  to  that  point. 

THE  CHURCH  HAS  NOT  MAINTAINED  AND  PATRONIZED 
THIS  UNIVERSITY  WITHIN  THE  MEANING 
OF  THE  ACT  OF  1895 

We  turn  now  to  the  consideration  of  the  Act  of  1895,  Chapter  6, 
entitled,  ‘^A.n  Act  for  the  benefit  of  incorporated  educational  insti¬ 
tutions.^^ 

Section  i  empowers  such  institutions  to  acquire,  receive  and  hold 
property  for  educational  purposes,  without  limit  of  amount. 

Section  2  provides :  “That,  wherever  any  such  educational  institution 
has  been  established,  and  is  being  maintained  and  patronized  by,  or, 
having  been  otherwise  established,  is  now  being  maintained  and  patron¬ 
ized  by,  any  religious  society  or  denomination,  or  shall  hereafter  be  so 
established,  maintained  and  patronized,  the  representative  governing 
body  of  such  society  or  denomination  shall  have  the  power  and  au¬ 
thority,  at  its  option,  to  elect  its  board  of  directors  or  trustees,  or  fill 
vacancies  occurring  therein,  and,  with  the  consent  of  such  boards,  to 
increase  or  diminish  the  number  of  members  thereof,  as  may  seem 
to  such  body  best  for  the  welfare  and  judicious  management  of  the 
institution ;  provided,  that  in  case  such  governing  body  shall  fail  or 
refuse  to  exercise  the  power  given  herein,  then  the  vacancies  shall  be 
filled  as  now  provided  by  law.” 

Section  3  authorizes  the  consolidation  of  two  or  more  such  institu¬ 
tions. 

Complainants  claim  that  Section  2  of  this  Act  authorizes  and  em¬ 
powers  the  General  Conference  of  the  Methodist  Episcopal  Church, 
South,  at  its  option,  to  elect  the  Board  of  Trust,  or  fill  vacancies  there¬ 
in,  of  Vanderbilt  University.  The  defendants,  upon  several  grounds, 
deny  this  claim.  They  say  that  this  Act  violates  Article  2,  Section  17, 
of  the  State  Constitution,  which  provides  that  “no  bill  shall  become  a 
law  which  embraces  more  than  one  subject,  that  subject  to  be  ex¬ 
pressed  in  the  title.” 

They  further  say  that  the  title  in  this  Act  is  so  vague  and  indefinite 
that  it  does  not  express  or  indicate  the  subject;  and  that  the  Act  itself 


39— 


contains  three  distinct  subjects,  and  hence  is  void.  If  this  were  an 
open  question,  the  writer  of  this  opinion  would  regard  it  as  very 
serious,  but  in  the  case  of  State  ex  rel.  Dodson  vs.  Washington  & 
Tusculum  College  (Mss.,  Knoxville,  September  Term,  1912),  involv¬ 
ing  the  validity  or  invalidity  of  an  attempted  consolidation  of  two 
incorporated  educational  institutions  under  Section  3  of  this  Act,  the 
same  attack  was  made  on  its  constitutionality,  and  the  court,  by  a 
majority  opinion,  sustained  the  Act. 

It  is  now  said  in  argument  that  the  case  was  decided  on  another 
question,  rendering  it  unnecessary  to  pass  on  the  validity  of  this  Act, 
but  that  the  court  did  hold  the  title  sufficient;  and  that  the  point  that 
the  Act  contained  more  than  one  subject  was  not  raised,  discussed  or 
passed  upon,  and  therefore  is  yet  an  open  question. 

It  is  true  that  the  case  turned  principally  upon  another  question, 
but  the  decision  of  this  question  was  not  an  improper  or  unnecessary 
one  in  the  case.  The  discussion  of  this  act  in  the  opinion  is  rather 
meager,  but  the  court  states  not  only  the  title,  but  also  the  substance 
of  the  act.  It  says  its  constitutionality  is  attacked  upon  several 
grounds.  It  then  refers  particularly  to  the  question  raised  on  the 
title  and  the  subject  expressed  therein,  and  says:  “The  majority  of 
the  court  is  of  the  opinion  that  the  caption  of  the  statute  in  question 
does  sufficiently  express  the  subject  of  the  legislation,  and  that,  there¬ 
fore,  complainant’s  contention  must  be  overruled.  The  authorities 
upon  which  the  majority  rest  their  decision  on  this  subject  are  State 
vs.  Yardley,  95  Tenn.,  516;  State  vs.  Brown,  103  Tenn.,  450;  Furnace 
Company  vs.  Railroad,  113  Tenn.,  728;  Scott  vs.  Marley,  124  Tenn., 
390,  and  other  cases  in  these  cited  and  referred  to.” 

It  is  only  fair  to  presume  that  both  questions  here  made  were 
there  made  by  counsel  in  that  case  and  considered  by  the  court, 
although  the  second  point  is  not  particularly  discussed  by  the  court. 
The  one  almost  necessarily  involved  the  other.  Then  we  think  that, 
if  the  title  to  this  act  is  sufficient,  as  was  distinctly  held  in  that  case, 
it  is  general  enough  to  include  all  the  provisions  of  this  act.  In  State 
vs.  Yardley,  supra,  this  court  has  said:  “Generality  of  title  is  not 
objectionable  so  long  as  it  is  not  made  to  cover  legislation,  incongru¬ 
ous  in  itself,  or  which,  by  fair  intendment,  may  not  be  considered  as 
having  a  necessary  or  proper  connection  with  the  subject  expressed.” 
Citing  authorities. 

We  therefore  think  that  this  objection  to  the  act  is  precluded  by 
these  authorities,  and  we  overrule  it. 


—40— 


Defendants  also  contend  that  this  university  does  not  come  within 
the  purvdew  of  this  statute.  That  is  to  say,  that  it  had  not  been  estab¬ 
lished,  and  was  not  being  maintained  and  patronized  by,  or,  having 
been  otherwise  established,  was  not  being  maintained  and  patronized 
by,  any  religious  society  or  denomination  (particularly  the  Methodist 
Episcopal  Church,  South,)  within  the  meaning  of  this  act,  at  the  time 
of  its  passage,  or  thereafter,  and  particularly  at  the  time  the  General 
Conference  undertook  to  elect  its  trustees,  and  hence  it  was  not  sub¬ 
ject  to  the  operation  of  this  act. 

The  most  significant  terms  of  this  act  are  defined  by  the  Standard 
Dictionary  as  follows: 

‘‘Establish — To  settle  or  fix  firmly;  place  on  a  permanent  footing; 
settle  securely,  as  in  a  business ;  found.” 

“Maintain — To  support ;  to  supply  with  means  of  support ;  provide 
for ;  sustain ;  keep  up.” 

“Patronize — To  act  as  a  patron;  extend  patronage;  lend  counte¬ 
nance  ;  encourage ;  favor.” 

“Patron — One  who  protects,  countenances,  or  supports  some  per¬ 
son  or  thing ;  one  who  habitually  extends  material  assistance ;  a  regu¬ 
lar  customer ;  a  protector  or  benefactor.” 

At  common  law,  as  applied  to  charities,  such  as  universities,  the 
patron  was  the  founder,  the  endower. 

''Patronum  faciunt  dos,  aediHcatio,  fundus  (Black’s  Law  Diction¬ 
ary)  ;  this  is  to  say:  Endowment,  building  and  land  make  a  patron. 
So,  in  the  leading  case  of  Phillips  vs.  Bury,  2  Term  R.,  346,  Lord  Holt 
said :  “It  is  now  admitted  on  all  hands  that  the  founder  is  patron.” 

And  again,  in  the  Dartmouth  College  case.  Judge  Story  said :  “The 
patron  or  endower  is  the  perficient  founder.” 

From  these  various  definitions  it  will  be  seen  that  to  establish,  to 
maintain,  to  patronize,  mean,  in  short,  to  found  and  support.  Now, 
did  the  church  establish — found — this  University?  We  have  already 
answered  this  in  the  negative. 

Has  it  maintained  and  patronized  it  ?  In  the  sense  of  lending  coun¬ 
tenance,  encouragement  and  favor,  and  being  a  regular  customer,  it  has 
undoubtedly  patronized  it.  The  University  has  drawn  probably  half 
or  more  of  its  students  from  Southern  Methodists,  but  its  doors  have 
always  been  open  to  all,  and  many  other  denominations  have,  in  this 
sense,  patronized  it.  If  this  were  sufficient,  a  number  of  denomina¬ 
tions  might  set  up  similar  claims  under  this  statute.  This  is  clearly 
not  the  maintenance  and  patronage  contemplated  by  this  Act. 


—41— 


Has  the  M.  E.  Church,  South,  then,  maintained  and  patronized 
this  institution  in  the  more  substantial  and  legal  meaning  of  said 
terms  of  providing  the  means  of  support,  founding,  endowing,  sus¬ 
taining? 

To  answer  this  question,  let  us  again  briefly  review  the  facts.  The 
original  eflfort  to  raise,  by  subscriptions  from  the  conferences  and 
churches  and  their  members,  the  endowment  called  for  and  required 
was  an  acknowledged  failure.  Altogether,  from  the  first  to  last,  about 
a  hundred  thousand  dollars  of  subscriptions  or  promises  were  had 
from  these  sources,  of  which  about  fifteen  thousand  dollars  have  been 
realized,  and  the  whole  has  been  devoted  to  the  '^sustentation  fund,” 
as  hereinbefore  explained.  Outside  of  the  Vanderbilt  gifts  and  Nash¬ 
ville’s  contributions  to  the  purchase  of  the  campus,  and  about  $23,000 
from  the  same  source  for  rebuilding  after  destruction  by  fire  of  some 
of  the  buildings,  there  has  been  received  at  various  times  from  the 
church,  churchmen  and  all  other  sources,  excepting  tuition  and  fees  of 
students,  about  $325,000  for  specific  purposes,  such  as  endowing  cer¬ 
tain  chairs  or  professorships,  lecture  courses  and  scholarships,  most  or 
all  in  the  theological  department,  and  to  enlarge  that  department, 
without,  however,  relieving  to  any  extent  the  general  endowment 
from  allowances  made  therefrom  to  that  department.  Nothing  from 
these  sources  has  been  realized  and  applied  to  the  general  endowment 
and  support  of  the  University  in  any  of  its  other  departments.  Mr.  Cor¬ 
nelius  Vanderbilt  gave  the  original  endowment  of  a  million  dollars,  and 
other  members  of  the  family  subsequently  added  another  million, 
partly  to  pay  expenses,  but  chiefly  to  add  to  the  general  endowment, 
and  this  endowment  has  provided  the  blood,  bones  and  sinews  of  this 
body  corporate,  properly  and  justly  called,  after  his  first  gift,  “Vander¬ 
bilt  University.” 

COMMODORE  VANDERBILT’S  GIFT  THAT  ESTABLISHED 
THE  UNIVERSITY  WAS  NOT  PROCURED  BY 
OR  THROUGH  THE  CHURCH 

It  is  now  claimed  that  the  church  is  entitled  to  credit  for  these 
Vanderbilt  gifts.  The  original  endowment  was  given  by  Mr.  C.  Van¬ 
derbilt,  through  Bishop  McTyeire,  without  solicitation,  to  the  cor¬ 
poration  itself.  It  was  not  given  to  or  through  the  church.  Mr.  Van¬ 
derbilt  was  not  a  church  man.  At  the  time  of  his  gift  he  must  have 
been  acquainted  with  the  charter,  including  the  Memphis  resolutions, 
and  the  by-laws  of  the  University.  He  made  his  gifts  to  the  corpora¬ 
tion  by  its  corporate  name. 


Vi' 

:K 


In  Carson  vs.  Carson,  115  Tenn.,  50,  this  court  has  said:  “The  de¬ 
vise  and  bequest,  being  made  direct  to  a  corporation  which  is  chari¬ 
table,  the  trusts  need  not  be  set  out  so  specifically  and  definitely  as 
if  made  to  individuals,  in  order  to  make  them  valid.  The  reason  is 
that  a  corporation,  organized  for  charitable  purposes,  has  these  pur¬ 
poses  and  trusts  set  out  in  its  charter  and  articles  of  foundation,  so 
that  the  trusts  are  thus  made  certain  and  will  control,  due  deference 
being  paid  to  the  directions  of  the'  testator,  if  any  are  given,  but  no 
trusts,  in  such  case,  need  be  declared,  as  they  are  set  out  in  the  charter 
and  articles  of  foundation.  To  illustrate,  if  a  bequest  bo  made  to  the 
Vanderbilt  University,  or  Cumberland  University,  by  name,  the  trust 
to  which  the  fund  is  to  be  applied  need  not  be  further  specified  by 
the  grantee,  since  these  are  well  known  charitable  corporations,  whose 
objects,  purposes  and  trusts  are  fully  set  forth  in  their  charters  and 
other  instruments  of  foundation.^^ 

Hence,  subject  to  the  particular  conditions  imposed  by  him  in  his 
deed  of  gift,  his  endowment  was  impressed  by  the  trusts,  specified  in 
the  charter  and  by-laws  of  this  institution.  He  knew  that  the  Board 
of  Trust  claimed,  and  in  fact  had,  the  right  of  self-perpetuation  by 
electing  its  own  members,  subject,  however,  to  the  condition  imposed 
by  the  by-laws,  in  pursuance  of  the  Memphis  resolutions,  to  the  effect 
that  the  conferences  cooperating  with  the  University  should  have  a  fair 
representation  in  its  management,  to-wit:  on  its  Board  of  Trust;  and 
doubtless  relied  upon  that  fact  for  the  proper  administration  and  appli¬ 
cation  of  the  endowment  so  provided,  subject,  of  course,  to  such  other 
legal  conditions  as  he  imposed  in  his  deed  of  gift.  The  same  is  doubt¬ 
less  true  of  the  subsequent  gifts  by  other  members  of  his  family. 

Upon  these  facts  we  hold  that  the  church  cannot  properly  lay 
claim  to  the  Vanderbilt  gifts  as  coming  from  it. 

COMMODORE  VANDERBILT  WAS  THE  FOUNDER  AND  HE 
AND  HIS  FAMILY  HAVE  “MAINTAINED  AND 
PATRONIZED”  THIS  INSTITUTION 

From  the  time  of  these  gifts  until  this  present  controversy  arose, 
and  the  report  of  the  Vanderbilt  Commission  was  made,  not  only  the 
University  and  its  Board  of  Trust,  but  the  church  at  large,  its  Bishops, 
conferences  and  members  recognized  Mr.  Vanderbilt  as  the  founder, 
the  patron,  of  this  institution.  His  birthday  was  early  declared  to  be 
Founder’s  Day,  and  was  ever  afterwards  celebrated  as  such.  The 


43- 


present  claim  that  the  church  was  the  founder  first  took  form,  if  it 
did  not  originate,  with  the  report  of  the  Vfeinderbilt  Commission.  We 
repeat  our  holding  that  Mr.  Vanderbilt,  and  not  the  church,  was  the 
true  founder  and  patron  of  this  University,  and  now  further  hold  that 
he  and  his  family,  by  their  endowments,  have  maintained  and  patronized 
this  institution  in  the  true  and  proper  sense  and  meaning  of  those 
terms,  and  that,  therefore,  this  University  does  not  come  within  the 
purview  and  operation  of  this  statute. 

THE  ACT  OF  1895  DOES  NOT  APPLY  TO  EDUCATIONAL 
INSTITUTIONS  INCORPORATED  UNDER 
THE  ACT  OF  1871 

There  are  yet  other  reasons  to  support  this  view.  It  must  be  re¬ 
membered,  as  we  have  heretofore  held,  that  this  Board  of  Trust  are 
not  only  the  directors,  or  trustees,  of  this  corporation,  but  also  the  in¬ 
corporators  themselves.  By  their  charter  and  the  Code,  Section  1471, 
hereinbefore  quoted,  they  are  authorized,  as  members  of  the  corpora¬ 
tion,  to  fix  the  number  of  trustees,  the  officers,  etc.,  and,  under  this 
authority,  they  might  have  fixed  the  number  of  trustees  or  directors 
at  less  than  their  whole  body,  buit  not  less  than  the  minimum  number 
required  by  statute  (at  present,  not  less  than  five  nor  more  than  thirty- 
three.  Act  of  1889,  Chapter  181,  Shannon's  Code,  Sec.  2520) ;  but,  as 
their  whole  body  did  not  exceed  the  maximum  allowed  by  law,  they 
all  chose  to  act  as  directors  or  trustees.  This,  however,  cannot  affect 
their  character  as  incorporators,  nor  can  they  be  deprived  of  any  of 
their  rights  as  such  by  dealing  with  them  as  directors  or  trustees. 
.This  act  deals  only  with  the  election  of  directors  or  trustees,  and  not 
members  of  the  corporation. 

It  was  not  intended  to  apply  to  corporations  like  this,  but  rather  to 
such  as  are  organized  under  Act  of  1875,  Ch.  4*2,  Sec.  2  (or  similar 
acts),  which  provides:  'Tf  said  corporation  is  organized  as  a  literary 
or  educational  institution,  under  the  patronage  of  any  Christian  or 
Jewish  denomination,  the  corporation  shall  have  the  power  to  increase 
the  number  of  directors  or  trustees ;  to  regulate  the  mode  aand  manner 
of  appointment  of  the  same,  on  expiration  of  terms  of  service;  to 
regulate  the  number,  duties  and  manner  of  election  of  officers,  either 
actual  or  ex  officio;  to  appoint  executive  agencies;  and  to  pass  all  other 
by-laws  for  the  government  of  said  institution,  as  may  be  required  by 
the  denomination  establishing  the  same,  provided  said  by-laws  are  not 
inconsistent  with  the  Constitution  and  laws  of  this  State." 


Such  was  the  case  of  Southwestern  Presbyterian  University  vs. 
Presbyterian  Synods  of  Tennessee,  decided  by  this  court  at  Nashville, 
March  31,  1905,  referred  to  by  complainants  as  authority  for  their 
contentions  in  this  case.  In  that  case  the  University  was  chartered 
under  the  last  Act  mentioned,  and  as  an  institution  under  the  pat¬ 
ronage  of  the  Presbyterian  Church  in  the  United  States,  and  in  pur¬ 
suance  of  a  certain  plan  of  union  entered  into  by  certain  synods  of 
that  church,  for  the  purpose  of  establishing,  maintaining  and  patroniz¬ 
ing  said  university.  This  court,  in  its  decree,  decided:  “That  the 
said  university  is  under  the  patronage  of  the  Presbyterian  Church 
in  the  United  States,  and  that,  in  this  relation  of  patronage,  the  said 
synods  of  Tennessee,  Mississippi,  Louisiana  and  Alabama  act  for  said 
church,  and,  for  it  and  in  such  capacity,  have  the  right  to  elect,  each, 
two  directors  of  the  said  university  corporation,  according  to  the  plan 
of  union  adopted  by  the  synods  originally  cooperating  in  the  establish¬ 
ing  of  said  Southwestern  Presbyterian  University,  which  provided 
in  substance,  that  the  government  of  the  university  shall  be  in  the 
hands  of  the  directorate,  consisting  of  two  members  from  each  synod, 
one  elected  each  year  after  the  first ;  and  that,  therefore,  the  trustees 
or  directors  of  the  said  university  have  no  power  or  authority  to  select 
their  successors  and  perpetuate  the  said  board,  regardless  of  the  will 
and  desire  of  the  said  synods,  as  hereinbefore  stated;  and  that  the 
trustees  and  directors  are  rightfully  to  be  selected,  or  chosen,  in  ac¬ 
cordance  with  the  customs  and  by-laws  of  said  university,  adopted 
in  pursuance  of  said  plan  of  union,  and  in  practice  before  the  21st  of 
June,  1904,  when  this  bill  was  filed.” 

The  case  seemed  to  turn  more  upon  the  construction  of  the  char¬ 
ter,  and  the  plan  of  union  upon  which  it  was  based,  than  upon  this 
Act  of  1895  in  question,  but  the  decision  might  well  be  supported  by 
that  Act.  The  case,  however,  is  not  controlling,  or,  indeed,  applicable 
to  the  facts  in  the  case  at  bar.  This  case  at  bar  would  be  quite  different 
if  the  university  were  chartered  under  the  Act  of  1875,  or  if,  as  con¬ 
tended  by  complainants’  counsel,  its  charter  could  be  construed  so  as 
to  make  the  Annual  Conferences  in  the  first  instance,  and  after¬ 
wards  the  General  Conference,  as  their  sole  assignee  and  successor, 
the  incorporators  of  this  institution,  and  the  Board  of  Trust  merely 
its  directors  or  trustees.  In  that  event,  however,  as  is  well  said  by 
defendants’  counsel,  they  would  have  no  need  to  appeal  to  the  Act  of 
1895  for  authority  to  elect  members  of  the  board  of  directors  or  trus¬ 
tees.  They  would  already  have  that  power,  as  did  the  synods  in  the 


-45— 


Southwestern  Presbyterian  University  case,  by  virtue  of  their  charter. 
This  case  is  more  like  that  of  State  ex  rel.  Duncan  vs.  Martin  Female 
College,  decided  by  this  court  at  Nashville,  February  26,  1888,  referred 
to  by  both  parties  as  authority  for  their  respective  contentions.  In 
that  case  it  appears  that  the  testator,  Thomas  Martin,  in  1870,  had  be¬ 
queathed  a  fund  “to  the  officers  of  the  Methodist  Episcopal  Church, 
South,  established  in  the  town  of  Pulaski,’’  to  be  used  “for  the  purchas- 
ing  of  grounds,  and  erecting  suitable  buildings  for  a  female  school.” 
The  officers  of  the  local  church  met  and  accepted  the  bequest,  and,  in 
conformity  with  the  procedure  prescribed  by  the  Code  of  1858,  elected 
trustees  to  procure  a  charter,  and  a  charter  was  accordingly  procured. 
The  charter,  among  other  provisions,  contained  the  following: 

“Item  3.  The  trustees  herein  named  shall  hold  their  offices  until 
their  places  become  vacant  by  death,  resignation  or  removal  from  the 
county,  or  removal  by  the  board  for  cause ;  and  any  vacancy  occurring 
shall  be  filled  by  the  board  at  a  regular  meeting  from  nominations  made 
by  the  officers  of  the  said  Methodist  Episcopal  Church,  South,  estab¬ 
lished  at  Pulaski ;  that  is  to  say,  by  the  present  officers  and  their  suc¬ 
cessors  of  the  Methodist  Episcopal  Church,  South,  now  established 
at  Pulaski,  and  by  whom  the  present  trustees  were  elected.” 

The  insistence  of  the  bill  in  that  case  was  that  this  church  was  under 
the  control  of  the  quarterly  conference  and  of  the  Tennessee  Annual 
Conference,  and  that  the  charter  as  taken  out  had  denied  this  right. 
It  also  appears  that  for  many  years  the  school  was  regularly  reported 
to  the  Tennessee  Conference  as  a  church  school  and  an  endowed  insti¬ 
tute  belonging  to  the  conference ;  and  its  President  was  “appointed,” 
that  is  to  say,  being  a  minister  of  that  conference,  was  assigned  by  the 
conference  to  that  position.  The  issue  for  decision  in  the  case  was 
whether  this  school  corporation  was  under  the  control  of  the  church, 
or  rather  the  Tennessee  Annual  Conference  representing  the  church,  as 
an  ecclesiastical  body.  The  court  decided  and  decreed :  “That  there  is 
nothing  in  the  will  of  Thomas  Martin,  or  in  the  charter  of  Martin 
Female  College,  or  in  the  resolutions  of  the  officers  of  the  Methodist 
Episcopal  Church,  South,  at  Pulaski,  invoking  and  putting  said  charter 
into  existence,  which  requires  or  contemplates  that  the  female  school 
founded  thereunder  should  be  under  the  dominion,  control,  or  direction 
of  the  Methodist  Episcopal  Church,  South,  through  its  annual  or  quar¬ 
terly  conference  or  otherwise,  or  under  the  dominion,  control,  or  direc¬ 
tion  of  any  religious  denomination  or  sect  whatever;  that  it  was  not 
the  object  of  Thomas  Martin,  by  his  will,  to  place  the  school  founded 


-46 


thereby  under  the  control  of  the  local  officers  of  the  Methodist  Episcopal 
Church,  South,  at  Pulaski,  as  a  church  organization  and  in  a  church 
capacity,  but  said  officers  were  designated  as  a  body  of  individuals  who 
were  to  inaugurate  such  school  in  conformity  with  the  will  of  said 
Thomas  Martin,  by  invoking  and  putting  on  foot  a  corporate  organiza¬ 
tion  with  the  proper  founding,  establishment  and  subsequent  control 
and  management  of  said  school,  which  they  did  in  the  incorporation  of 
Martin  Female  College;  and  that  the  charter  of  said  college  is  in  con¬ 
formity  with  said  will,  and  not  in  conflict  with  same.’’  See  the  citation 
of  this  case  in  Johnson  vs.  Johnson,  92  Tenn.,  567. 

This  case  app>ears  to  be  authority  for  the  following  propositions: 
That  the  local  officers  of  the  Methodist  Episcopal  Church,  South,  at 
Pulaski,  not  as  a  church  organization  or  in  a  church  capacity,  but  as  a 
body  of  individuals,  were  members  of  this  corporation  by  virtue  of  their 
charter  and  the  provisions  of  the  Code  under  which  it  was  granted, 
and  as  such  were  entitled  to  name  the  trustees  or  directors  of  the  cor¬ 
poration;  that  the  charter  proceedings,  although  had  under  the  Code 
provisions  which  expressly  allowed  representative  incorporation,  incor¬ 
porated  them  as  natural  persons  and  not  the  church  of  which  they  were 
officers ;  and  that  the  court,  in  order  to  determine  the  purpose  and  plan 
of  government  of  the  charity,  will  look  to  the  articles  of  foundation. 

Our  view  of  this  matter,  to-wit,  that  this  statute  does  not  apply 
to  this  particular  corporation,  is  reinforced  by  the  common  understand¬ 
ing  and  conduct  of  all  the  parties.  Notwithstanding  the  fact  that  this 
Act  was  passed  in  1895,  yet  the  Annual  Conferences  cooperating  with 
the  University  up  to  1898  made  no  claim  of  right  or  power,  under  this 
statute,  to  elect  members  of  the  Board  of  Trust  of  Vanderbilt  Univer¬ 
sity.  In  1898,  in  the  memorial  addressed  by  the  Board  of  Trust  to  the 
General  Conference,  it  was  said :  “By  the  charter  of  the  University  the 
Board  of  Trustees  is  vested  with  the  power  and  obligation  to  fill  its 
own  vacancies,  but  the  election  of  any  member  is  not  valid,  under  the 
law  of  the  University,  until  said  member  has  been  confirmed  by  the 
conference  which  he  is  designed  to  represent.  Under  the  new  plan  the 
Board  would  be  at  liberty  to  select  its  members  without  geographical 
restrictions  of  any  kind  and  the  General  Conference  would  confirm  or 
1  eject  the  appointment.” 

In  accepting  the  proposal  of  the  University  through  this  memorial, 
the  General  Conference  resolved :  “That  the  General  Conference  of  the 
M.  E.  Church,  South,  hereby  accepts  the  proposed  relation  and  control 
of  the  Vanderbilt  University,  and  commits  to  the  General  Board  of 


47— 


Education  the  confirmation  of  all  trustees  elected  by  the  Board  of  Trust 
of  Vanderbilt  University/'  It  asserted  at  that  time  no  claim  of  right 
under  the  act  in  question  to  elect  these  trustees,  and  at  no  time  subse¬ 
quent,  until  after  this  controversy  arose  and  the  Vanderbilt  Commission 
had  made  its  report.  Here  were  twelve  years  of  acquiescence  in  the 
former  relation  existing  between  the  University  and  the  conference, 
and  thereby  an  acknowledgment  and  tacit  admission  that  this  University 
did  not  fall  within  the  provisions  of  this  Act  of  1895. 

AS  TO  THE  CAUSE  OF  THE  CONTROVERSY 

\ 

In  fact,  at  the  time  this  controversy  culminated  in  the  election  by  the 
General  Conference  of  three  members  of  the  Board  upon  the  assertion 
of  its  exclusive  right  to  do  so,  this  action  appears  to  have  been  taken, 
not  from  a  dissatisfaction  with  the  former  relation  existing  between  the 
General  Conference  and  the  University,  but  merely  to  force  and  test  the 
issue  as  to  its  exclusive  right  to  elect  members- of  the  Board ;  for  at  the 
same  time  it  adopted  a  resolution  to  the  effect :  “That,  following  this 
election,  the  General  Conference  will,  for  the  future,  continue  the 
method  of  choosing  the  trustees  adopted  by  the  General  Conference  held 
at  Baltimore  in  1898,  when  it  committed  to  the  General  Board  of  Edu>- 
cation  the  confirmation  of  all  trustees  (elected)  by  the  Board  of  Trust 
of  Vanderbilt  University."  This  rather  indicates  that  the  real  quarrel 
or  controversy  between  these  parties  was  not,  in  fact,  upon  this  issue. 

Other  objections  are  made  by  the  defendant  to  this  Act  of  1895,  but 
in  the  view  which  we  have  taken  of  this  case,  it  is  not  necessary  to  take 
further  notice  thereof. 

SUMMARY  OF  COURTS  CONCLUSIONS 

From  the  foregoing  conclusions,  it  results  that  in  the  opinion  of  this 
court  the  relations  maintained  by  the  University  with  the  Annual  Con¬ 
ferences  from  its  birth  to  1898,  and  afterwards  with  the  General  Con¬ 
ference  to  1910,  were  their  proper  and  legal  relations,  under  the  charter 
and  by-laws  of  the  University  and  its  contracts  and  agreements  with 
the  conferences ;  and  that  the  General  Conference  in  1910,  when  it  un¬ 
dertook  to  elect  members  of  the  Board  of  Trust,  was  not  acting  within 
its  rights,  and  its  appointees  are  not  entitled  to  seats  in  that  Board ;  that 
the  action  of  the  Board  of  Trust,  in  rescinding  its  existing  by-laws  and 
electing  members  independently  of  the  General  Conference,  was  like¬ 
wise  unauthorized,  except  upon  the  assumption  that  the  General  Con¬ 
ference  had  surrendered  its  relation  of  cooperation  with  and  represen- 


-48- 


tation  in  the  Board  of  Trust.  We  think  that  the  General  Conference 
did  not  mean  to  do  this,  or  to  abandon  any  part  or  right  it  had  in  the 
management  of  the  University ;  but  was  asserting  a  right  to  more  than 
it  was  entitled  to.  ‘Tf  one  party  to  the  contract  claims,  as  contract 
rights  thereunder,  more  than  he  is  given  by  the  contract,  such  claim 
does  not  of  itself  amount  to  a  renunciation  of  the  contract.”  3  Page 
on  Contracts,  Sec.  1439,  and  cases  cited.  Of  course,  at  any  time,  if  it 
should  voluntarily  surrender,  or  renounce,  this  relation,  or  contuma¬ 
ciously  refuse  to  confirm  members  elected,  and  cease  to  cooperate  with 
the  University,  its  rights  to  representation  in  its  Board  of  Trustees  and 
in  its  management  would  as  a  consequence  cease;  and,  in  that  event, 
the  Board  of  Trust  could  proceed,  independently  of  the  General  Con¬ 
ference,  to  the  election  of  members  to  fill  vacancies  in  its  own  body. 

We  are  further  of  opinion  that  the  inherent  power  of  the  Board  of 
Trust  to  fill  vacancies  in  its  own  body  authorizes  it  to  elect  and  install 
members  to  fill  such  vacancies,  and  that  such  new  members  are  entitled 
to  their  seats  on  the  board  ad  interim,  until  such  time  as  they  may  be 
rejected  by  the  General  Conference,  or  its  General  Board  of  Education, 
acting  for  it  and  under  its  authority.  It  has  the  right  to  keep  its  mem¬ 
bership  full,  and  cannot  legally  divest  itself  of  that  power  and  duty, 
except  conditionally  upon  the  refusal  of  the  General  Conference  to 
confirm  its  appointees.  The  rejection  of  such  member  or  members 
by  the  General  Conference  would  at  once  create  a  vacancy  to  be  again 
filled  b}^  the  Board,  subject  to  the  like  conditions. 

We  therefore  conclude  that  the  relators,  Messrs.  Harris,  Godbey  and 
Biggs,  are  not  entitled  to  membership  in  the  Board  of  Trust;  that  the 
defendants.  Waller,  Robins  and  Jackson,  are  entitled  to  such  mem¬ 
bership,  subject  to  the  action  of  the  General  Conference,  or  its  General 
Board  of  Education,  to  whom  it  has  committed  the  duty  of  confirm¬ 
ing  or  rejecting  the  members  elected  by  the  Board,  and  that  they  are 
entitled  to  act  as  such  members  until  such  time  as  they  may  be  rejected 
by  that  conference  or  Board.  Since  their  election  has  not  been  so 
rejected,  they  cannot  be  ousted  under  this  proceeding  from  their  seats 
in  the  Board  of  Trust.  It  results,  therefore,  that  the  Chancellor’s  de¬ 
cree  will  be  reversed,  and  the  complainants’  bill  be  dismissed  at  their 
costs. 

Let  decree  be  drawn  accordingly. 

W.  R.  Turner,  Special  Judge. 

Petition  for  Rehearing  dismissed  x^pril  2,  1914. 


